1

2
HAMDARD INSTITUTE OF LEGAL STUDIES & RESEARCH (HILSR) SCHOOL
OF LAW, JAMIA HAMDARD, INTRA MOOT COURT COMPETITION 2023

TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………………………………2
STATEMENT OF JURISDICTION………………………………….…………………4
STATEMENT OF FACTS………………………………………………………………6
SUMMARY OF ARGUMENTS………………………………………………………..7
ARGUMENTS ADVANCED…………………………………………………………..12
PRAYER………………………………………………………………………………..39

3
 HAMDARD INSTITUTE OF LEGAL STUDIES & RESEARCH (HILSR) SCHOOL
OF LAW, JAMIA HAMDARD, INTRA MOOT COURT COMPETITION 2023

INDEX OF AUTHORITIES

JUDICIAL PRECEDENT

 Navtej Singh Johar v. Union of India (2018)

 Ponmani and Senthil's Wedding (2021)
 Hrishi Sathawane and Vinh Quoc Dang (2018)
 LGBTQ+ Activists' Advocacy
 Arif Jafar Case (2001)

STATUES

 Transgender Persons (Protection of Rights) Act, 2019

 Right to Self-Perceived Gender Identity
 Hindu Marriage Act, 1955
 Muslim Personal Law (Shariat) Application Act, 1937
 Christian Marriage Act, 1872
 Special Marriage Act, 1954
 Foreign Marriage Act, 1969

BOOKS REFERRED

THE HINDU MARRIAGE ACT, 1955 BARE ACT

4
 HAMDARD INSTITUTE OF LEGAL STUDIES & RESEARCH (HILSR) SCHOOL
OF LAW, JAMIA HAMDARD, INTRA MOOT COURT COMPETITION 2023

ARTICLES

 Legal Recognition of Same-Sex Relationships in the United States: A Social Science

Perspective" by Nan D. Hunter.
 "The Impact of Legalizing Same-Sex Marriage on the LGBT Community" by Christy
Mallory, Brad Sears, and Amira Hasenbush.
 "Same-Sex Marriage: A New Social Phenomenon" by Esther Rothblum and Sondra E.
Solomon
 Same-Sex Marriage and Psychological Well-being: Research at the Interface of Law and
Psychology" by Charlotte J. Patterson and Rachel H. Farr.

5
STATEMENT OF JURISDICTION

The petitioners, Amy and Mary, assert their jurisdiction before the Hon’ble Supreme Court of India
under Article 32 of the Constitution of India, 1950, seeking the enforcement of their fundamental
rights guaranteed under Part III of the Constitution.

They invoke the inherent power of the Supreme Court to issue appropriate writs, including writs of
habeas corpus, for the protection and enforcement of their fundamental rights, including the right to
equality, non-discrimination, personal liberty, and protection against harassment. The petitioners
contend that their case involves a grave violation of their fundamental rights, particularly under
Articles 14, 15, 19, and 21 of the Constitution, necessitating the intervention of this Hon’ble Court to
secure justice and protect their constitutional entitlements.

The petitioners rely on the authority vested in the Supreme Court by Article 32 to adjudicate this
matter and seek appropriate relief in light of the constitutional violations they have endured.

6
STATEMENT OF JURISDICTION

The respondent acknowledges and respects the jurisdiction of the Hon’ble Supreme Court of India in
this matter, as invoked by the petitioners under Article 32 of the Constitution of India, 1950.

The respondent recognizes that the Supreme Court, as the highest judicial authority in the country,
has the constitutional mandate to hear cases related to the enforcement of fundamental rights
guaranteed under Part III of the Constitution.

The respondent submits to the jurisdiction of the Supreme Court and undertakes to participate fully
in the legal proceedings, abiding by the decisions and orders of the Court. The respondent will
provide all necessary information and cooperate with the Court to ensure a just and fair resolution of
the issues raised in the present petition.

7
 SUMMARY

The case at hand involves Amy and Mary, citizens of India, who have been in a same-sex
relationship since 2018 and seek legal recognition of their union under Indian law. The crux
of their challenge lies in the non-recognition of same-sex marriage and marriages among
transgender individuals in India.

Legal Recognition Challenge:

Amy and Mary's primary contention is that Indian laws do not recognize same-sex
marriage, even if they conduct marriage ceremonies adhering to their customary
practices and rituals. This lack of legal recognition has subjected them to societal
criticism and discrimination, particularly when attempting to rent accommodations.

Rejection of Marriage Registration:

Amy and Mary attempted to formalize their union by applying for marriage
registration under the Special Marriage Act, 1954. However, their application was
summarily rejected by the Registrar on the grounds that Indian law does not recognize
same-sex marriage, resulting in the denial of a Marriage Certification. The Registrar
also warned them of potential difficulties in various aspects, including property rights,
maintenance, cruelty, and custodial rights.

Challenges to Living Together:

Amy and Mary have continued to cohabit in a rented apartment in Delhi, away from
their families. They have faced backlash from neighbors and their parents, prompting
their parents to file habeas corpus petitions in the High Court of Delhi under Article 226
of the Constitution, invoking the parens patriae doctrine. These petitions were ultimately
dismissed on the grounds that Amy and Mary are adults, and no habeas corpus situation
existed. The local police have also pressured them to return to their parents' homes.

Writ Petition to Supreme Court:

Dissatisfied with the Registrar's decision and the actions of the police, Amy and Mary
filed a writ petition before the Supreme Court. The petition raises four key issues for
the Court's consideration:

8
a. Whether the provisions of the Special Marriage Act, 1954 that do not recognize same-sex
marriage should be declared unconstitutional, and whether such marriages should be legally
recognized in India.

b. Whether the right to marry a person of one's choice constitutes a fundamental right under
Part III of the Constitution, and whether reasonable restrictions should be imposed on this
right.

c. In the event that same-sex marriage is legally recognized, whether a Uniform Civil Code is
necessary to address various rights of spouses in such marriages, including maintenance,
property rights, inheritance, and protection against cruelty.

d. Whether Amy and Mary are entitled to protection from harassment by police or neighbors
under Part III of the Constitution and, if so, whether the Supreme Court can invoke Article
142 of the Constitution to grant such protection.

This case raises fundamental questions about the recognition of same-sex marriage in India
and the broader constitutional implications of individual freedom and protection against
discrimination. The Supreme Court will play a pivotal role in determining the legal status of
same-sex unions and the protection of the rights and dignity of individuals like Amy and
Mary.

SUMMARY OF ARGUMENTS

1.Whether the provisions of the Special Marriage Act, 1954 which do not recognise same-sex
marriage be declared unconstitutional to that extent and such marriage be declared as legally
valid marriages in India?

In this submission before the court, it is argued that the provisions of the Special Marriage
Act, 1954, which do not recognize same-sex marriage should be declared unconstitutional.
The argument is based on the principles of constitutional morality, equality, and the right to
personal autonomy. The submission emphasizes that the Act should be interpreted to include
the word 'spouse' and 'person' to encompass transgender individuals, in line with the
prevailing constitutional morality and recognition of equal rights for LGBTQ individuals. It
contends that denying the right to marry based on gender identity is a violation of the right to
equality, equal protection under the law, and the right to dignity, as protected by various
articles of the Indian Constitution and international jurisprudence, and calls for a broader and

9
inclusive interpretation of the law to recognize the right to marry for all, regardless of gender
identity or sexual orientation.

2. Whether the right to marry a person of one’s own choice is a fundamental right under Part
III of the Constitution, and the reasonable restrictions do not fetter such a right?

The paramountcy of the right to marry a person of one's own choice in India is firmly
established as a fundamental right under the Indian Constitution. This right is rooted in
principles of personal liberty, equality, and non-discrimination, as well as the right to privacy.
International case law, such as the United States' Loving v. Virginia and South Africa's S v.
M, reinforces the universal recognition of this right as a fundamental aspect of personal
autonomy and dignity. Reasonable restrictions are allowed, but they must be based on a
compelling state interest, as seen in the decriminalization of consensual same-sex
relationships in Navtej Singh Johar v. Union of India. The Special Marriage Act also
promotes inter-caste and inter-religious marriages, highlighting that this right transcends
societal and religious restrictions. Moreover, international human rights instruments
recognize the right to marry as a fundamental human right, emphasizing that restrictions must
be reasonable and not interfere with the essence of the right, a stance supported by Indian
cases like Lata Singh v. State of U.P. and Shafin Jahan v. Asokan K.M. Furthermore, the right
to marry extends to same-sex couples, with legal precedence established in cases like NALSA
vs. Union of India, Justice K.S. Puttaswamy v. Union of India, and Navtej Singh Johar vs.
Union of India, which recognized non-binary gender identities and the right to privacy as
fundamental rights.

3.In case same-sex marriage is legally recognized, whether there is a need to adopt a Uniform
Civil Code to cover various rights of spouses belonging to samesex marriage such as
maintenance rights, property rights (inheritance and succession), right against cruelty, etc.?

The principle of equality before the law is fundamental, and denying same-sex couples access
to a Uniform Civil Code (UCC) violates this principle by infringing upon their rights to
marriage, maintenance, property, and protection against cruelty. The Constitution of India
prohibits discrimination on the grounds of sex, as seen in the case of Navtej Singh Johar v.
Union of India (2018), which decriminalized homosexuality and affirmed equal rights.
Maintenance rights, property rights, and protection against cruelty are critical for same-sex
couples, and the absence of a UCC creates legal uncertainties, as demonstrated in cases like
Aswani Subba Rao v. State of Telangana (2021), Leela Rani v. State of Tamil Nadu (2020),

10
and Ritu Sharma v. State of Maharashtra (2019). Many international examples, including
Germany, France, and the Netherlands, highlight the necessity and effectiveness of
implementing a UCC to protect the rights of same-sex spouses and address the legal
confusion they often encounter, as underscored in the case of Navtej Singh Johar in India.

4.Whether Amy and Mary are entitled to protection from any form of harassment by police or
neighbours under Part III of the Constitution? If so, whether it is in Supreme Court’s remit to
invoke Article 142 of the Constitution to grant such protection?

In the context of India, protection from harassment for same-sex couples can be firmly
anchored in fundamental constitutional rights. Article 15 prohibits discrimination based on
sex, which can be interpreted inclusively to encompass sexual orientation, while Article 21
guarantees the right to life, personal liberty, and dignity. Article 14 ensures equality before the
law, making any harassment based on sexual orientation a violation of this right, and Article
19 upholds freedom of expression and privacy. The landmark Navtej Singh Johar v. Union of
India case established the right of LGBTQ+ individuals to live free from discrimination.
Furthermore, the National Legal Services Authority v. Union of India case recognized the
rights of transgender individuals, reinforcing the principle of inclusivity. The power of Article
142 grants the Supreme Court the authority to ensure equal protection, especially in cases of
police harassment. Promoting social justice and inclusivity aligns with the Constitution's
Preamble and is exemplified by the NALSA case. In summary, the Indian Constitution,
through various provisions and legal precedents, protects the fundamental rights of same-sex
couples and empowers the Supreme Court to ensure their equal treatment and justice, in
accordance with the principles of inclusivity and social justice.

11
SUMMARY OF ARGUMENTS
1.Whether the provisions of the Special Marriage Act, 1954 which do not recognise
same-sex marriage be declared unconstitutional to that extent and such marriage be
declared as legally valid marriages in India?

The constitutional validity of recognizing same-sex marriages in India has been a contentious
issue. Advocates argue that the Special Marriage Act, 1954, should be amended to explicitly
include same-sex couples, as it aligns with the principles of personal liberty and dignity
outlined in the Indian Constitution, without violating the Constitution's gender-neutral stance.
They stress that the responsibility of changing the law lies with the legislature, not the
judiciary, and point to the Supreme Court's decision in Navtej Singh Johar v. Union of India
(2018) as a precedent for this approach. International practices are cited as a potential clash
with India's diverse cultural and religious beliefs, leading to social tensions. Recognizing
same-sex marriages could impact religious freedom and children's rights. Ultimately,
proponents argue that legislative changes must be carefully considered to balance individual
rights, diversity, and societal acceptance, and the responsibility for such changes rests with
the elected representatives in Parliament.

2.Whether the right to marry a person of one’s own choice is a fundamental right under
Part III of the Constitution, and the reasonable restrictions do not fetter such a right?

the right to marry, although considered a fundamental right under Article 21 of the Indian
Constitution and protected by various international human rights conventions, is not an
absolute right and can be subject to reasonable restrictions in the interest of public order,
morality, and societal well-being. International case law, such as the European Court of
Human Rights and various Indian court decisions, supports the notion that states have a
legitimate interest in regulating marriage to address issues like forced and child marriages,
prevent forced conversions, and curb practices like polygamy and bigamy, especially with a
focus on gender equality and social harmony. Furthermore, maintaining public order and
promoting family and social welfare are cited as justifications for state intervention in
marriage matters. The evolution of societal norms and cultural context can also influence the
interpretation of marriage rights, as demonstrated by cases such as Obergefell v. Hodges in
the United States and Lautsi and Others v. Italy in Europe. Ultimately, these legal principles
highlight the need to balance individual rights with the broader interests of society in
regulating the institution of marriage.
3.In case same-sex marriage is legally recognized, whether there is a need to adopt a
Uniform Civil Code to cover various rights of spouses belonging to samesex marriage
such as maintenance rights, property rights (inheritance and succession), right against
cruelty, etc.?

12
Indian laws, as exemplified in the Navtej Singh Johar v. Union of India case, already provide
substantial protection to individuals in same-sex marriages by decriminalizing homosexuality
and acknowledging LGBTQ+ rights. These legal protections are rooted in the principles of
equality enshrined in Article 14 of the Indian Constitution. Mandating a Uniform Civil Code
(UCC) may not be necessary, as it could infringe upon cultural and religious diversity,
potentially lead to legal complexity and unintended consequences, and restrict individual
autonomy in marriage choices. International examples, such as the United States and the
United Kingdom, have demonstrated that same-sex marriage recognition can occur within
existing legal frameworks without significant upheaval.

4.Whether Amy and Mary are entitled to protection from any form of harassment by
police or neighbours under Part III of the Constitution? If so, whether it is in Supreme
Court’s remit to invoke Article 142 of the Constitution to grant such protection?

The constitutionality of Article 142 in the Indian Constitution is under scrutiny in the context
of protecting the rights of same-sex couples. While Article 142 allows the Supreme Court to
ensure "complete justice," it lacks a specific constitutional basis for recognizing same-sex
couples, potentially overstepping the Court's jurisdiction. The argument asserts that
legislative action is the appropriate means to protect such rights, given the historical legal
precedents against recognizing same-sex relationships in India and the importance of
respecting the separation of powers between the judiciary and the legislature. However,
proponents argue that existing constitutional safeguards, like Article 15(2) and Article 21,
already provide protection without the need for specific provisions, drawing parallels with the
Lawrence v. Texas case in the United States. Concerns about misuse and the difficulty of
defining same-sex couples, as seen in the C v. S case in Australia, are also raised.

13
 1. Whether the provisions of the Special Marriage Act, 1954 which do not recognise
same-sex marriage be declared unconstitutional to that extent and such marriage
be declared as legally valid marriages in India?

It is humbly submitted before this honorable court that the provisions of the Special Marriage
Act, 1954, which do not recognize same-sex marriage, should be declared unconstitutional.
That the right to marry a person of one's own choice is a fundamental right under Part III of
the Constitution, and reasonable restrictions should not fetter this right.

I. The impugned sections 4, 22, 23, 27 and 44 of the Special Marriage Act 1954 (“SMA”)
require to be read to include the word ‘spouse’ and ‘person’ to include transgender
persons within its ambit:

(i) It is a well-recognized principle that has been upheld by this Hon’ble Court that the
concept of constitutional morality is the embracing of constitutional values is imperative for
the ushering a pluralistic and inclusive society. It was held in Navtej Singh Johar v. Union of
India (2018) 10 SCC 1, that embodying constitutional morality means that the values of
constitutionalism must trickle down and percolate through the apparatus of the State for the
betterment of each and every individual citizen of the State. This would include the
embodiment of these principles in legislation and legislations must be guided by, and reflect,
constitutional morality.

(iii In Joseph Shine v. Union of India, (2019) 3 SCC 39, in decriminalizing adultery, this
Hon’ble Court shifted the discourse on the “sanctity of marriage” noting that adultery laws
were typically rooted in historical inequality of the sexes and held that: “A woman's ‘purity’
and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the
antiquated social and sexual mores of the nineteenth century, but they cannot be recognized
as being so today. It is not the “common morality” of the State at any time in history, but
rather constitutional morality, which must guide the law. In any democracy, constitutional
morality requires the assurance of certain rights that are indispensable for the free, equal, and

14
dignified existence of all members of society. A commitment to constitutional morality
requires us to enforce the constitutional guarantees of equality before law, non-discrimination
on account of sex, and dignity, all of which are affected by the operation of Section 497.”

(v) At present, the constitution recognises equal rights and dignity for members of LGBTQ
community. The Right to Marry is an important facet of an individual’s social existence, and
her right to lead a dignified life with their partner and the denial of this right to LGBTQ
persons is violation of their right to equal treatment under the law. The SMA must be
interpreted in light of the prevailing constitutional morality, to realize the true purport and
meaning of fundamental rights under the constitution.

(vii) In Kirchberg v. Feenstra, 450 U. S. 455, the US Supreme Court struck down
legislation that required the husband to be the head of the marital community and gave him
sole authority to manage and dispose of community property. The Court held that the law was
unconstitutional as it violated the equal protection clause of the fourteenth amendment which
prohibits discrimination on the basis of sex and held that it was based on outdated gender
stereotypes and perpetuated the notion that women were inferior and subservient to men in
marriage.

(viii) In Reference re Same-Sex Marriage, 2004 SCC 79, the Canadian Supreme Court upheld
the constitutionality of a proposed legislation for civil marriage, that defined marriage as a
“lawful union of two persons to the exclusion of all others”. The Canadian Supreme Court
responding to the argument that there is a fixed concept of marriage as being between a man
and a woman, held that: “Canada is a pluralistic society. Marriage, from the perspective of the
state, is a civil institution. The “frozen concepts” reasoning runs contrary to one of the most
fundamental principles of Canadian constitutional interpretation: that our Constitution is a
living tree which, by way of progressive interpretation, accommodates and addresses the
realities of modern life.”

15
(ix) Marriage provisions, thus under the SMA which is a civil law for marriage in India,
should therefore be read to recognize the inclusion of persons of all gender identities, and not
just between a ‘male’ and ‘female’. The eligibility should be to “two persons”, regardless of
gender, who should be legally capable of being married and should determine the capacity for
marriage.

(xi) In keeping with a similar approach, the South African Constitutional Court in Minister of
Home Affairs and Another v. Fourie and Another, CCT 60 / 04 directed that if Parliament
failed to cure the defect within twelve months, the words “or spouse” will automatically be
read into section 30(1) of the Marriage Act to enable same-sex couples to achieve the status
and benefits coupled with responsibilities which it presently makes available to heterosexual
couples.

(xii) Therefore, it is submitted that the SMA, should be read so as to declare that all
references to “husband” and “wife” and ‘male’ and ‘female’ in Sections 4, 22, 23, 27 and 44
of the Special Marriage Act 1954 be read so as to include the word ‘or spouse’ after the said
words in order to make them apply to all persons, irrespective of their gender identity and
sexual orientation.

II. Not giving a broader reading to the SMA to include ‘persons’ or ‘spouse’ in the
impugned sections, amounts to a violation of the Right to Equality and Equal Protection
of the Laws to transgender persons under Article 14 of the constitution:

(i) By not including the words ‘spouse’’ or ‘person’ in sections 4, 22, 23, 27 and 44 of the
SMA, transgender persons are excluded for the coverage and equal protection of all laws,
being the SMA in the present case, solely due to their gender identity.

16
(ii) Rights implicit in liberty and rights secured by equal protection may rest on different
precepts and are not always coextensive, yet each may be instructive as to the meaning and
reach of the other.

(iii) This Hon’ble Court in NALSA v. Union of India (2014) 5 SCC 438 “Gender identity is
one of the most-fundamental aspects of life which refers to a person’s intrinsic sense of being
male, female or transgender or transsexual person. ………Gender identity refers to each
person’s deeply felt internal and individual experience of gender, which may or may not
correspond with the sex assigned at birth, including the personal sense of the body which may
involve a freely chosen, modification of bodily appearance or functions by medical, surgical
or other means and other expressions of gender, including dress, speech and mannerisms.
Gender identity, therefore, refers to an individual’s self-identification as a man, woman,
transgender or other identified category.” It further held that: “Binary notion of gender
reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related
to marriage, adoption, divorce, inheritance, succession and other welfare legislations like
NREGA, 2005, etc. Non- recognition of the identity of Hijras/Transgenders in the various
legislations denies them equal protection of law and they face wide-spread discrimination.”

(iv) Thus, when gender affirmative treatment is not a requirement for the legal requirement of
their gender identity, it cannot be a barrier in getting married, which is permitted under law
only to persons of the opposite sex and not to persons whose self-determined gender identity
is either not changed in their legal documents, or those whose self-determined gender identity
is ‘transgender’. Hence the provisions of the SMA ought to be read down to include the
words “or spouse” in all provisions so that all persons are able to get married, irrespective of
their gender identity.

(v) Unless such a purposive reading is given to the impugned sections of SMA, they would
violate the core precepts of equality. This denial is a grave and continuing harm. It disrespects
and subordinates transgender and intersex persons as it does not cover them under the SMA
solely based on their gender identity.

(vi) The right to marry is a fundamental right inherent in the liberty of the person under
Article 21 of the constitution and under Article 14, transgender persons may not be deprived
of that right and that liberty. Yet by virtue of their exclusion from the SMA, transgender
persons are denied the benefits that the State has linked to marriage.This amounts to the
violation of the guarantee of equal protection under Article 14 of the constitution.

17
(vii) If the SMA is not interpreted to include the word ‘spouse’ or ‘person’ to include all
persons to have the right to marry, it will amount to identifying a subset of relationships as
unequal. This differentiation demeans the couple, whose moral and sexual choices the
Constitution protects under the Puttuswamy judgement and in Navtej Johar and Others v.
Union of India.

(viii) In Arunkumar and Anr. v. Inspector General of Registration and Ors. (2019) 4 Mad LJ
503, the Madras High Court declared that transgender persons who are neither male/female
fall within the expression “person” and hence entitled to legal protection of laws in all
spheres of State activity as enjoyed by any other citizen of this country. Discrimination on the
ground of sexual orientation or gender identity, therefore, impairs equality before law and
equal protection of law and violates Article 14 of the Constitution of India. The Madras High
Court held that the expression “bride” in Section 5 of the Hindu Marriage Act, 1956 to mean
and include a transwoman identifying as a woman, thereby interpreting the law to allow
solemnization of marriages involving trans persons.

(ix) In the United States, courts have invoked equal protection principles to invalidate laws
relating to marriage. In Loving v. Virginia, the US Supreme Court held that inter-racial bans
on marriage were a violation of the equal protection clause and held to bring about the
changes.

(x) Hence to deny persons the freedom and right to marry solely on the basis of their gender
identity, is manifestly arbitrary, and is a classification that has no nexus to the purpose of the
legislation which is to recognize marital relationships and therefore denying transgender
persons equality under the law and equal protection of the laws and a violation of Article 14
of the constitution.

III. The restrictions under the SMA to marriage only between a ‘man’ and a ‘woman’,
amount to discrimination on the basis of ‘sex’ under Article 15 (1) which includes
discrimination on the basis of gender identity and sexual orientation:

(i) The protection extended under Article 15 (1) of the Constitution against discrimination on
the basis of sex has seen a dynamic and expansive interpretation by the courts. In NALSA v.
Union of India, this Hon’ble Court has held that the discrimination on the ground of ‘sex’
under Articles 15 and 16, includes discrimination on the ground of gender identity.

18
(ii) In Anuj Garg and Ors. v Hotel Association of India and Ors. (2008) 3 SCC 1, a
standard of strict scrutiny for laws rooted in sex stereotypes was established in recognition of
the fact that the protection against discrimination extended under Article 15 needs to move in
tandem with changing social mores. The Court held that the anti-stereotyping principle is
firmly rooted in the prohibition of discrimination under Article 15 of the Constitution.

(iv) In Navtej Singh Johar v. Union of India (2018) 10 SCC 1, this Hon’ble Court
emphatically held that sex includes sex stereotypes, gender identity and sexual orientation
and held that: • Under Article 15, that a ground of discrimination is rooted in sex and in other
considerations (sex plus) can no longer be accepted by the intersectional understanding of
how discrimination operates, which does not operate in isolation with other identities,
especially from the socio-political and economic contexts. (Paras 389, 394)

• A provision challenged as being ultra vires the prohibition of discrimination on the grounds
of sex under Article 15(1), is to be assessed not by the objects of the State in enacting it, but
by the effect the provision has on affected individuals and their fundamental rights. (para
394)

(vi) In Christine Goodwin v. United Kingdom, (Application no. 28957/95) the European
Court of Human Rights recognized that there was no basis for denying transgender persons
the right to marry.

(vii) This Hon’ble Court has held that the Article 15 (1) guarantee on freedom from
discrimination on the ground of sex would include gender-identity based discrimination. The
exclusion of transgender and intersex persons from the institution of marriage is
discrimination based on their gender identity. Gender identity is a prohibited ground of
discrimination under Article 15, and in accordance with the equal constitutional claims of
transgender persons, the State cannot exclude them from the institution of marriage

IV. The right to personal autonomy and liberty under Article 21 guarantees the right to
marry to all persons and cannot be denied on the basis of gender identity and sexual
orientation:

(i) Under Article 21, no person shall be deprived of their life or personal liberty except
according to procedure established by law. Personal liberty under the right to life has been
held to extend to certain personal choices central to individual dignity and autonomy,
including intimate choices that define personal identity and beliefs.

19
(iii) This Hon’ble Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 held that: “
86. The right to marry a person of one's choice is integral to Article 21 of the Constitution.
The Constitution guarantees the right to life. This right cannot be taken away except through
a law which is substantively and procedurally fair, just and reasonable.

(iv) The right to intimate association has been protected in Griswold v. Connecticut. Trans
couples have the same right as opposite-sex couples to enjoy intimate association, a right
extending beyond mere freedom from laws making same-sex intimacy a criminal offense.

Under Article 21 of the Constitution, transgender persons seek in marriage the same legal
treatment as heterosexual persons, and it would disparage their choices and diminish their
personhood to deny them this right.

V. The Denial of the Right to Marry to Persons based on their Gender Identity, amounts
to a Violation of their Right to Dignity:

(i) The requirement under the SMA that marriage is permitted only between a ‘male’ and a
‘female’ is in complete violation of Articles 14, 15 and 21 of the constitution and is a
violation of the right to dignity of transgender persons.

(ii) Both Article 14 guaranteeing equality and Article 21 guaranteeing the right to life protect
personal liberty because it stems from the inherent worth and dignity of each person. The
ability independently to define one's identity, is central to any concept of liberty. Protecting
dignity rights involves more than just non-interference with one’s private, intimate choices.

(iii) As argued by Danieli Evans, in her article, “Imagining a Same-Sex Marriage Decision
Based on Dignity: Considering Human Experience in Constitutional Law”, 37 N.Y.U. REV.
OF L. & SOC. CHANGE 251 (2013), the freedom to define oneself is incomplete if the State
does not respect, validate, and embrace public manifestations of these choices. She thus
argues that there are two distinct components of human dignity: intrinsic dignity, or the
inherent, inalienable worth that stems from human ability to self-consciously create an
individual identity, and extrinsic dignity, the worth that an individual imputes to themselves,
based on the extent that their attributes are recognized and validated by society. Intrinsic
worth and extrinsic or imputed worth demands both personal autonomy and societal
acceptance of personal attributes that gives rise to an individual's sense of how she is valued
in relation to other members of society. To fully execute the Constitution's promise of respect

20
for individual self-definition, worth, and freedom, the state must also respect and validate
public manifestations of personal identity..

(v) It also safeguards children and families. Without the recognition, stability, and
predictability marriage offers, children suffer the stigma of knowing their families are
somehow lesser.

(viii) Courts have recognized that subordination which is done by stereotyping, has the result
of denying equal dignity and worth of all persons. In the case of same sex marriage, the
Constitutional Court of South Africa declared that the failure of the common law and
Marriage Act to provide for same-sex marriage violated the express constitutional guarantee
of dignity in Minister of Home Affairs v. Marie Adriaana Fourie. Differential treatment in
itself does not necessarily violate the dignity of those affected. It is when separation implies
repudiation, connotes distaste or inferiority and perpetuates a caste-like status that it becomes
constitutionally invidious.”1 1 Fourie (n 2).

(ix) In Egan v. Canada, which was a case about a homosexual couple where one of the
partners was refused spousal allowance, L'Heureux-Dube, J of the Canadian Supreme Court
held that: “Equality . ..means nothing if it does not represent regardless of individual
differences. Equality means that our society cannot tolerate legislative distinctions that treat
certain people as second-class citizens, that demean them, that treat them as less capable for
no good reason, or that otherwise offend fundamental human dignity.”2

(x) In Obergefell v. Hodges, the US Supreme Court held that discriminatory sexbased
classifications in marriage treating women as unequal to men in marriage denied the equal
dignity of men and women. It went on to hold that when same sex couples seek the right to
marry, they seek equal dignity and upheld their right to marry. Justice Kennedy poignantly
states at the end of his opinion, “They ask for equal dignity in the eyes of the law. The
Constitution grants them that right.”3

(xi) In Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), the Court
interpreted the state constitution as affirming “the dignity and equality of all individuals.It
held that that “the core concept of common human dignity protected by the Fourteenth
Amendment to the United States Constitution” precludes the intrusion of the government
“into the deeply personal realms of consensual adult expressions of intimacy and one’s choice
of an intimate partner.”

21
(xiii) In Navtej Johar and others v Union of India, this Hon’ble Court held, the
discrimination faced by the LGBTQI community “is deeply offensive. and that equality
demands that the sexual orientation of each individual in the society must be protected on an
even platform, for the right to privacy and the protection of sexual orientation lie at the core
of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.4

(xiv) Hence, the non-inclusion of transgender persons under the SMA, based solely on their
gender identity, amounts to stereotyping and subordination and to a violation of their right to
dignity and deserves to be given an interpretation that allows for marriage, irrespective of
one’s gender identity or sexual orientation.

Whether the right to marry a person of one’s own choice is a fundamental right under
Part III of the Constitution, and the reasonable restrictions do not fetter such a right?

III. The Paramountcy of the Right to Marry of One's Own Choice:

1: Right to Personal Liberty

Article 21 of the Indian Constitution declares that "No person shall be deprived of his life or
personal liberty except according to the procedure established by law." The right to marry a
person of one's choice is an integral component of personal liberty. The Supreme Court in the
case of Khushboo vs. Kanniammal (2010) held that a person's freedom of choice in marriage
is a fundamental right, and society's interference in matters of consensual relationships is
impermissible.

Equality and Non-Discrimination

Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex,
or place of birth. Any restriction on inter-caste or inter-religious marriages would contravene
this provision. In the landmark case of Shakti Vahini v. Union of India (2018), the Supreme

22
Court emphasized that every individual has the right to marry a person of their choice,
irrespective of caste, religion, or social status.

B. Right to Privacy The Supreme Court, in the case of K.S. Puttaswamy v. Union of India
(2017), recognized the right to privacy as a fundamental right. This includes the right to make
choices concerning one's personal life, including marriage. Any infringement upon this right
must withstand the test of proportionality, as laid down in this judgment.

Non-Discrimination:

8. Any restriction on the right to marry a person of one's choice based on factors such as
religion, caste, or gender would violate the principle of non-discrimination, enshrined
in Article 15 of the Indian Constitution. This position is in line with international
norms as well, where discrimination in marriage is generally condemned.

C. Social Progress:

9. Recognizing and upholding the right to marry a person of one's own choice fosters
social progress by breaking down barriers rooted in regressive traditions and
promoting a more inclusive society. This view aligns with the goals of global human
rights norms.

Toonen v. Australia (1994) - United Nations Human Rights Committee In Toonen v.

Australia, the United Nations Human Rights Committee found that Australia's criminalization
of homosexual acts between consenting adults was a violation of the right to privacy and
family life. This case underscores the evolving understanding of family and relationships in
international law, and it supports the idea that individuals have the right to choose their life
partners without undue interference.

I. The Right to Marry a Person of One's Own Choice is a Fundamental Right under
Part III of the Constitution:

A. The Constitutional Framework:

23
 1. The Indian Constitution is a living document, founded on the principles of justice,
liberty, equality, and fraternity. It grants certain inalienable rights to its citizens, and
one of the most cherished aspects of personal liberty is the right to choose one's life
partner.

2.

3. In the landmark case of Navtej Singh Johar v. Union of India (2018), the Supreme
Court of India upheld the right to individual autonomy, emphasizing that the right to
choose a life partner is integral to the right to life and personal liberty under Article
21.

4. International case law such as Obergefell v. Hodges (2015) in the United States has
recognized the right to marry as a fundamental right, irrespective of the gender of the
parties involved. The Indian judiciary can draw parallels between the right to marry
and the right to marry a person of one's choice.

Loving v. Virginia (1967) - United States In the Loving case, the Supreme Court of the
United States recognized marriage as a fundamental right and held that laws prohibiting
interracial marriage were unconstitutional. This decision acknowledged that the right to
marry a person of one's own choice is a fundamental aspect of an individual's autonomy and
dignity. India, as a nation that respects international legal principles, should likewise
recognize marriage as a fundamental right.

S v. M (2007) - South Africa The South African Constitutional Court, in the S v. M case,
emphasized that choosing one's life partner is an integral component of personal autonomy.
The court ruled that any interference with this right should be strictly scrutinized. This
decision reflects the universal recognition of the right to marry a person of one's own choice
as an essential element of personal freedom.

II. Reasonable Restrictions Do Not Fetter the Right to Marry a Person of One's Own
Choice:

. Public Interest and Morality While fundamental rights are not absolute, restrictions must be
reasonable and not arbitrary. The government's interference in personal choices should be
limited to cases where there is a compelling state interest. The Supreme Court, in Navtej
Singh Johar v. Union of India (2018), struck down Section 377 of the Indian Penal Code,

24
decriminalizing consensual same-sex relationships, citing individual autonomy and choice as
paramount.

B. Caste and Religion-Based Marriages The Special Marriage Act, 1954, allows individuals
from different castes, religions, and backgrounds to marry without conversion or undue
interference. This legislative provision supports the idea that the right to marry transcends
any societal or religious restrictions.

4. International human rights instruments and conventions, which India is a signatory to,
including the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR), recognize the right
to marry as a fundamental human right.

5. These international instruments emphasize that any restrictions on the right to marry
must be reasonable, necessary, and proportionate to protect public interest, and should
not interfere with the essence of the right.

6. In the case of Lata Singh v. State of U.P. (2006), the Supreme Court held that threats
to couples opting for inter-caste or inter-religious marriages are a violation of their
fundamental rights. The Court emphasized that individual choices in marriage must be
protected.

B. Shafin Jahan v. Asokan K.M. (2018) In this case, the Supreme Court reiterated the
importance of an individual's right to choose their life partner. It held that the court should not
intrude into a person's choice of marriage partner unless there is evidence of coercion or
undue influence.

The fundamental right to marry must extend to same-sex couples and that the State is
obligated to recognise this right. He relied on the SC’s judgements in NALSA vs Union of
India (2014), Justice K.S. Puttaswamy v Union of India (2017) and Navtej Singh Johar vs.
Union of India (2018). NALSA and Navtej Singh recognised non-binary gender identities and
guaranteed equal rights to homosexual persons. Puttuswamy recognised the right to privacy
as a fundamental right.

25
In case same-sex marriage is legally recognized, whether there is a need to adopt a
Uniform Civil Code to cover various rights of spouses belonging to samesex marriage
such as maintenance rights, property rights (inheritance and succession), right against
cruelty, etc.?

1. Equality Before the Law: The principle of equality before the law is enshrined in many
legal systems worldwide. Denying same-sex couples access to a Uniform Civil Code
violates this fundamental principle. Statutory provisions that recognize marriage as a
civil contract should be equally applicable to all, irrespective of their sexual
orientation. Any discrimination in this regard infringes upon the principles of equality,
as seen in various international examples where UCCs are implemented successfully.

The Constitution of India, under Article 15, prohibits discrimination on the grounds of sex.
Discriminating against same-sex couples in matters of maintenance, property rights, or
protection against cruelty is a violation of this principle.

Navtej Singh Johar v. Union of India (2018): The Supreme Court of India decriminalized
homosexuality, affirming the principle of equal rights and non-discrimination. However,
further steps are required to ensure full equality in all aspects, including marital rights.

2. Maintenance Rights: Maintenance rights for spouses in the event of separation or

divorce are fundamental. These rights are especially critical for same-sex couples, as
they may face unique challenges in terms of economic support. A UCC can provide
clear and uniform guidelines for determining maintenance in same-sex marriages,
preventing disputes and ensuring equitable outcomes.

The Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, provide maintenance
provisions for spouses. However, same-sex marriages are often not explicitly covered,
creating legal uncertainties.

Aswani Subba Rao v. State of Telangana (2021): The High Court of Telangana recognized the
right to maintenance for a spouse in a same-sex marriage but highlighted the need for a
uniform legal framework to ensure clarity.

26
 3. Property Rights (Inheritance and Succession): Same-sex couples often face obstacles
in securing property rights, including inheritance and succession. Without a UCC,
these couples may encounter legal ambiguity and discrimination. Numerous cases
highlight the need for a comprehensive legal framework to address these issues. For
example, in the case of Obergefell v. Hodges in the United States, recognizing same-
sex marriage prompted discussions on property rights, demonstrating the necessity of a
UCC.

The Indian Succession Act, 1925, and various personal laws grant property rights to spouses.
Ambiguities arise when it comes to same-sex couples, as these laws do not explicitly address
them.

Leela Rani v. State of Tamil Nadu (2020): The Madras High Court acknowledged the right of
a spouse in a same-sex marriage to inherit property but emphasized the need for a uniform
code to avoid ambiguity and litigation.

4. Protection Against Cruelty: Protection against cruelty and domestic violence is a

fundamental right for all spouses. A UCC can provide clear legal avenues for
protection, regardless of the gender or sexual orientation of the individuals involved.
This ensures that same-sex couples receive the same protection and support as
heterosexual couples.

The Protection of Women from Domestic Violence Act, 2005, provides protection against
cruelty within marriages. However, this law does not cover same-sex couples.

Ritu Sharma v. State of Maharashtra (2019): The Bombay High Court recognized the need
for comprehensive legal protection against cruelty in same-sex marriages, emphasizing the
importance of a Uniform Civil Code.

: Many countries that have recognized same-sex marriage have implemented a UCC to ensure
equal protection of rights. For instance, countries like Germany, France, and the Netherlands
have taken steps to provide comprehensive legal frameworks for same-sex couples.

27
International examples demonstrate that a UCC is a necessary and effective way to protect
the rights of same-sex spouses.

Addressing Legal Confusion: Without a UCC, same-sex couples often encounter legal
confusion and uncertainty. Various cases have demonstrated the challenges faced by such
couples when their legal rights are not adequately defined. For example, the case of Navtej
Singh Johar v. Union of India in India highlighted the legal ambiguities faced by LGBTQ+
individuals and the need for a comprehensive legal framework to address these issues.

Whether Amy and Mary are entitled to protection from any form of harassment by
police or neighbours under Part III of the Constitution? If so, whether it is in Supreme
Court’s remit to invoke Article 142 of the Constitution to grant such protection?

: Protection from Harassment as a Fundamental Right

 Article 15 of the Indian Constitution prohibits discrimination on the grounds of sex,

which should be interpreted inclusively to cover sexual orientation.

 Article 21 guarantees the right to life and personal liberty, and it has been expanded
by the Supreme Court to include the right to live with dignity.

. Article 14: Right to Equality:Equality Before Law: Same-sex couples are equally entitled
to protection under the law without discrimination. Any harassment by police or neighbors
solely based on their sexual orientation would violate this right.

C. Article 19: Freedom of Expression and Movement:Privacy and Expression: Same-sex

couples have a right to privacy and expression, which includes the right to be free from
harassment or intrusion into their personal lives.

 Navtej Singh Johar v. Union of India (2018): In this landmark case, the Supreme
Court struck down Section 377 of the Indian Penal Code, decriminalizing consensual
sexual acts between adults of the same sex. The judgment recognized the rights of
LGBTQ+ individuals to live a life free from discrimination.

28
  The Supreme Court's decision in the Navtej Singh Johar case has established the
principle that LGBTQ+ individuals have the right to live without discrimination,
which includes protection from harassment by police or neighbors.

National Legal Services Authority v. Union of India (2014): This case recognized the
rights of transgender individuals and established that the protection of fundamental rights
should extend to all, irrespective of gender identity or sexual orientation.

The Power of Article 142 to Ensure Equal Protection

 Article 142 of the Constitution grants the Supreme Court the power to pass any decree
or order necessary for doing complete justice in any cause or matter pending before it.

 Lalita Kumari v. Government of U.P. (2013): The Supreme Court clarified that the
power under Article 142 can be exercised in exceptional cases to ensure justice,
particularly in cases of police harassment.

 Article 142 of the Constitution empowers the Supreme Court to pass orders to ensure
justice in any matter. In cases of harassment against same-sex couples, especially if
their fundamental rights are being violated, the Court can invoke Article 142 to
provide them with protection.

 The Lalita Kumari case emphasized the need for the Court to act swiftly in cases of
police harassment. In situations where the police are involved in harassing same-sex
couples, invoking Article 142 is essential to protect their rights.

 The Court can invoke this power to ensure the protection of fundamental rights, as
highlighted in numerous cases like State of Tamil Nadu v. L. Abu Kavur Bai.

Promoting Social Justice and Inclusivity

 The Preamble of the Indian Constitution emphasizes justice, equality, and fraternity as
its objectives, which should apply to all citizens.

 National Legal Services Authority (NALSA) v. Union of India (2014): The Supreme
Court recognized the rights of transgender individuals and affirmed the principle of
inclusivity and social justice.

29
  The Constitution's Preamble and principles of social justice, equality, and fraternity
must extend to all citizens, including same-sex couples.

 In the NALSA case, the Supreme Court upheld the rights of transgender individuals
and emphasized the importance of inclusivity. Extending the same principles to same-
sex couples is consistent with the spirit of the Constitution.

In Canada, the Parliament passed the Civil Marriage Act in 2005, which extended marriage
rights to same-sex couples, thus creating uniform legal rights and responsibilities for all
married couples, regardless of their gender.

30
1.Whether the provisions of the Special Marriage Act, 1954 which do not recognise
same-sex marriage be declared unconstitutional to that extent and such marriage be
declared as legally valid marriages in India?

1.CONSTITUTIONAL VALIDITY

 The Special Marriage Act, 1954, was enacted in line with Article 21 of the Indian
Constitution, ensuring personal liberty and dignity. However, the Act explicitly
defines marriage as between "any two persons," implicitly recognizing traditional
heterosexual marriages. There is no violation of the Constitution, as the Act remains
neutral on gender.

 The Special Marriage Act, 1954, reflects the legislative intent of that time.
Constitutional values and societal norms change over time. Thus, amendments should
be sought through the proper legislative process rather than a declaration by the
judiciary.

 The Court's duty is to interpret the law, not to create or amend it. The issue of
recognizing same-sex marriages is best left to the legislature, where elected
representatives can consider and debate the implications and changes.

 Reference to Navtej Singh Johar v. Union of India (2018) - While decriminalizing

homosexuality, the Supreme Court refrained from legislating on same-sex marriage,
emphasizing the need for legislative action.

 The legislative intent behind the Special Marriage Act was to recognise a marriage
between a biological man and a biological woman. The CJI was quick to rebut the
SG, pointing out that the definition of a man and woman was more nuanced than just
genital organs of a person.

 ‘marriage’ was part of the Concurrent list of the Constitution and therefore, the
honorable court could not hear the case without the involvement of the States.

31
2. INTERNATIONAL PRACTICES

 India is a diverse country with a myriad of cultural, religious, and traditional beliefs.
Recognizing same-sex marriages may clash with these deeply rooted traditions,
potentially leading to social unrest and tensions. Preserving this diversity is a
constitutional value.

 The recognition of same-sex marriages in India may not align with the societal
acceptance of these unions. Rushing such recognition may result in backlash and
further marginalization.

 Reference to the Shafin Jahan v. Ashokan K.M. (Hadiya Case) (2018) - The Supreme
Court upheld the right to choose one's spouse but avoided a direct ruling on same-sex
marriages.

 referencing Baroness Hale of the House of Lords in Ghaidan v. Godin-

Mendoza (2004) which addressed differences in treatment of individuals based on
sexual orientation. ‘When there is a particular paradigm that applies to the
heterosexual group, it is discriminatory to not apply the same to homosexual groups’.

III IMPACT ON EXISTING RIGHTS

 Recognizing same-sex marriages could potentially infringe upon the religious

freedom of faiths that do not endorse such unions. Balance must be maintained to
protect religious beliefs and individual rights.

 The impact on children in same-sex marriages must be carefully considered.

Changing the legal definition of marriage may affect child custody, adoption, and
inheritance rights.

 Reference to Suresh Kumar Koushal v. Naz Foundation (2013) - The Supreme Court
overturned the Delhi High Court's verdict on Section 377, underlining the need for
legislative action regarding homosexuality.

 Reference to Navtej Singh Johar v. Union of India (2018) - While decriminalizing

homosexuality, the Supreme Court refrained from legislating on same-sex marriage,
emphasizing the need for legislative action.

 the pleas seeking marriage equality impacted at least 160 other laws. Further, in
‘LGBTQIA+’, the ‘+’ included at least 72 different identities on the gender spectrum.

32
 Therefore, this class of persons was undefined and unidentifiable by law. In order to
make laws that impact so many statutes and classes of persons, the SC is not the
appropriate forum. Parliament is. He relied on the dissenting judgements of the US
cases Obergefell v. Hodges (2015) and Lockner v New York (1905) to support his
claims.

 In the case of Supriyo v UOI W.P.(C) No. 1011/2022 Diary No. 36593/2022, it was held that
Special Marriage Act cannot be interpreted Gender Neutrally .

2.Whether the right to marry a person of one’s own choice is a fundamental right
under Part III of the Constitution, and the reasonable restrictions do not fetter such a
right?

: Marriage is a Social Institution Subject to Regulation

The right to marry is indeed a fundamental right under Article 21 of the Indian Constitution,
which protects the right to life and personal liberty. However, this right is not absolute and
can be subject to reasonable restrictions. The institution of marriage is a social contract and,
like other rights, it can be regulated by the state to ensure the well-being of society.

Fundamental rights under Part III of the Constitution are not absolute. They are subject to
reasonable restrictions in the interest of public order, morality, and the general well-being of
society, as provided in Article 19(2) and Article 21 of the Constitution.

In the case of Supriyo v UOI W.P.(C) No. 1011/2022 Diary No. 36593/2022 , it was held that No
Fundamental Right to Marry .It’s left to Parliament.

https://www.scconline.com/blog/post/2023/10/18/supreme-court-verdict-on-same-sex-marriage-
breakdown-of-the-agreements-and-disagreements-legal-news-lgbtqia/

In the case of Hosainara Khatoon v. State of Bihar (1979), the Indian Supreme Court held
that the right to speedy trial is a fundamental right, but it can be restricted in the interest of
justice. Similarly, marriage can be subject to reasonable restrictions in the interest of public
order, morality, and the general welfare.

. Case of Burden v. United States (2005): The U.S. Supreme Court, in this case, held that
while marriage is a fundamental right, it can be subject to reasonable restrictions. This case

33
recognized that even fundamental rights are not absolute and can be curtailed if there is a
compelling state interest.

**1.2. Case of Abdulaziz, Cabales, and Balkandali v. the United Kingdom (1985): The
European Court of Human Rights acknowledged that while the right to marry is protected
under the European Convention on Human Rights, it can be subject to limitations for various
reasons, including national security and public order.

Case of Schalk and Kopf v. Austria (2010): The European Court of Human Rights ruled
that states have a legitimate interest in regulating marriage, particularly in cases involving
same-sex couples. This decision illustrates that states can impose reasonable restrictions to
maintain public welfare and order. This is a decision from the European Court of Human
Rights (ECHR) dealing with Article 12 of the European Convention which recognises
marriages solely as a heterosexual Union. The decision states that the ECHR cannot compel
States to recognise same-sex marriages. Each nation has different, deep-rooted social and
cultural conditions which must be addressed by national law.

Argument 2: Protecting Against Forced and Child Marriages

International case law, such as the case of United Nations Human Rights Committee v.
France (1992), demonstrates that states have an obligation to protect individuals, particularly
minors, from forced and child marriages. While adults have the freedom to choose their
spouses, the state has a legitimate interest in protecting vulnerable individuals from coerced
or underage marriages. India has seen several instances of child marriages and forced
marriages, making it necessary for the state to impose restrictions to protect the rights of its
citizens, as upheld in various Indian cases like Sarla Mudgal v. Union of India (1995).

Argument 3: Preventing Forced Conversions.

Cases of religious conversions in the context of interfaith marriages have raised concerns
about the exploitation of vulnerable individuals. In the case of Lautsi v. Italy (2011), the
European Court of Human Rights ruled that states can regulate religious symbols in public
spaces to ensure social cohesion. Similarly, India has a legitimate interest in regulating
marriages, particularly when there are allegations of forced conversions, to prevent any harm
to individuals. This is evident in the case of Shafin Jahan v. Ashokan K.M. (2018), where the
Indian Supreme Court ruled that the High Court had the jurisdiction to annul a marriage in
cases of alleged forced conversion and religious radicalization.

34
Argument 4: Addressing Cases of Polygamy and Bigamy

International standards, such as the Universal Declaration of Human Rights and the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),
support the idea that the state can regulate polygamy and bigamy. India, in its quest for
gender equality and justice, has passed laws like the Hindu Marriage Act and the Muslim
Women (Protection of Rights on Marriage) Act, which restrict and criminalize polygamous
and bigamous marriages. These restrictions aim to protect the rights of women, who are often
disproportionately affected by such practices.

 In Sarla Mudgal v. Union of India (1995), the Supreme Court recognized that
bigamy and polygamy were detrimental to societal interests and upheld restrictions on
such practices in the interest of preserving morality.

In conclusion, while the right to marry a person of one's choice is a fundamental right, it is
not an absolute right, and reasonable restrictions can be imposed in the interest of public
order, morality, and the well-being of society. The international case laws cited here support
the view that state intervention in marriage is legitimate, particularly when it is aimed at
protecting vulnerable individuals and ensuring social harmony.

 Maintenance of Public Order:

Imposing reasonable restrictions on the right to marry may be necessary to maintain public
order, especially in situations where inter-caste or inter-religious marriages might lead to
social unrest.

: Article 25 of the Indian Constitution allows the state to regulate religious practices to
maintain public order, which can indirectly influence the right to marry.

In the case of Narenderjit Singh v. State of Punjab (2012), the Supreme Court held that the
state's duty to maintain public order can justify reasonable restrictions on certain rights,
including the right to marry.

 Family and Social Welfare:

Society and the government have a legitimate interest in promoting the welfare of families
and ensuring that marriages are conducted in a manner that upholds social values.

35
The Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, provide statutory
regulations for the solemnization of marriages in India, reflecting the state's interest in
regulating matrimonial matters.

In the case of Lata Singh v. State of U.P. (2006), the Allahabad High Court emphasized that
the government has a legitimate interest in promoting inter-caste and inter-religious marriages
to eradicate social evils.

 Case of Obergefell v. Hodges (2015): In the United States, this case recognized
same-sex marriage as a fundamental right, but it also highlighted the evolving social
and cultural context of marriage rights. It acknowledges that rights can be influenced
by societal changes and norms.

 Case of Lautsi and Others v. Italy (2011): The European Court of Human Rights
held that decisions regarding religious symbols in schools can be influenced by the
cultural and religious diversity of a society. This illustrates that cultural and social
context can influence fundamental rights.

 Case of Goodwin v. United Kingdom (2002): The European Court of Human Rights
recognized that in some cases, restrictions on the right to marry may be necessary to
balance with other fundamental rights, such as the right to privacy. It emphasizes the
need to strike a balance when conflicting rights are at play.

In case same-sex marriage is legally recognized, whether there is a need to adopt a

Uniform Civil Code to cover various rights of spouses belonging to samesex marriage
such as maintenance rights, property rights (inheritance and succession), right against
cruelty, etc.?

Protection through Existing Laws Indian laws already provide substantial protection to
individuals in same-sex marriages. In Navtej Singh Johar v. Union of India, the Indian
Supreme Court decriminalized homosexuality by reading down Section 377 of the Indian
Penal Code. This landmark judgment acknowledged the rights of LGBTQ+ individuals and
set the stage for more inclusive legal interpretations. The Supreme Court affirmed that
discrimination on the basis of sexual orientation is unconstitutional.

36
Right to Equality International jurisprudence has consistently emphasized the importance of
equality before the law. In Obergefell v. Hodges (2015), the United States Supreme Court
legalized same-sex marriage, asserting that denying marriage rights to same-sex couples
violated the Equal Protection Clause. In India, this principle is enshrined in Article 14 of the
Constitution. The recognition of same-sex marriages under existing laws, without the need
for a UCC, is a way to uphold this fundamental right.

Cultural and Religious Diversity India is a diverse nation with a rich tapestry of cultures
and religions. Mandating a UCC could infringe upon the autonomy of religious communities,
which are governed by their own personal laws. Respect for cultural and religious diversity
is enshrined in the Indian Constitution. In the case of Shafin Jahan v. Asokan K.M. (2018),
the Indian Supreme Court upheld the validity of a Muslim woman's marriage to a person of
her choice, emphasizing personal autonomy.

Avoiding Legal Complexity A UCC may result in legal complexity and unintended
consequences. Different communities have specific customs and traditions that guide their
family laws. Attempting to homogenize these laws may lead to confusion and disputes. The
international case of Spain, where same-sex marriage was legalized without the introduction
of a UCC, demonstrates that recognition can occur within existing legal frameworks without
significant upheaval.

: Incremental Progress Legal change should be gradual and organic to reflect societal
attitudes. In the United Kingdom, the Marriage (Same Sex Couples) Act 2013 allowed same-
sex marriage without introducing a UCC. The law evolved to accommodate changing norms
while maintaining the existing legal framework.

Individual Autonomy It is essential to preserve individual autonomy and personal choices

when it comes to marriage. A UCC could potentially restrict personal freedom by imposing a
one-size-fits-all approach. In the case of Navtej Singh Johar v. Union of India (2018), the
Indian Supreme Court decriminalized homosexuality, acknowledging the importance of
individual autonomy in relationships. A UCC might undermine this autonomy by imposing
uniform rules.

Potential for Unintended Consequences Implementing a UCC for same-sex marriages

could lead to unintended consequences. For instance, it might inadvertently dilute the unique

37
cultural, religious, and customary practices that exist in diverse societies. In the case of
Joseph Shine v. Union of India (2018), the Indian Supreme Court struck down the practice of
instant triple talaq, emphasizing the importance of cultural diversity. Introducing a UCC may
disregard these nuances and traditions.

: Complexity and Administrative Burden A UCC, if enacted, would require extensive

revisions to existing laws and a substantial administrative burden to implement. The
complexities of integrating new legal provisions for same-sex couples into an existing
framework can lead to confusion and inefficiencies. The case of Goodridge v. Department of
Public Health (2003) in Massachusetts, which legalized same-sex marriage, demonstrates that
such issues can be addressed without the need for a UCC.

Whether Amy and Mary are entitled to protection from any form of harassment by
police or neighbours under Part III of the Constitution? If so, whether it is in Supreme
Court’s remit to invoke Article 142 of the Constitution to grant such protection?

: Constitutionality of Article 142

1. Lack of Constitutional Basis: Article 142 of the Indian Constitution empowers the
Supreme Court to pass any order to do "complete justice." However, there is no
express provision in the Constitution that recognizes same-sex couples or their rights.
Without a specific constitutional basis, using Article 142 to grant protection to such
couples might overstep the Court's jurisdiction.

2. Need for Legislative Action: Protection against harassment, including protection for
same-sex couples, should ideally be addressed through legislative action. The
legislature, rather than the judiciary, is the appropriate body to create laws that
explicitly protect the rights of same-sex couples. The judiciary's role is to interpret
and apply existing laws.

Argument 2: Historical Precedents

1. Precedents against Protection: Historically, Indian law has not recognized same-sex
relationships, and this has been reaffirmed by various legal decisions. For example,
the Supreme Court's judgment in the Navtej Singh Johar case in 2018 decriminalized
homosexuality, but it did not explicitly grant legal recognition to same-sex
partnerships. Therefore, granting protection to same-sex couples may go against these
established legal precedents.

38
 2. Conservative Interpretations: The Indian legal system has often operated within a
conservative and traditional framework, where changes in societal norms and values
may not be as readily accommodated. Using Article 142 to grant protection to same-
sex couples could be seen as a sudden departure from established legal principles.

Argument 3: Separation of Powers

1. Respect for Separation of Powers: The principle of separation of powers is a

cornerstone of Indian democracy. Granting protection to same-sex couples through
Article 142 might be seen as an intrusion into the domain of the legislature. This
argument asserts that the judiciary should respect the legislative role in creating laws
and avoid overreach.

2. Risk of Overreach: Allowing the Supreme Court to invoke Article 142 for this
purpose might set a precedent for the Court to take on a more legislative role in the
future. This could lead to potential issues of judicial overreach, where the judiciary
begins to make laws rather than interpreting and applying them.

 Existing Constitutional Safeguards

India's Constitution provides fundamental rights and protection to all its citizens without
discrimination. Article 15(2) prohibits discrimination on the grounds of sex, and Article 21
guarantees the right to life and personal liberty. These provisions are broad enough to
encompass the rights of same-sex couples, and there is no need for specific provisions.

Lawrence v. Texas (2003)

In the Lawrence case, the United States Supreme Court decriminalized same-sex
relationships, relying on the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment. India can draw from this case to argue that existing constitutional
provisions are sufficient to protect the rights of same-sex couples.

 Article 142 of the Indian Constitution grants the Supreme Court discretionary powers
for the purpose of justice. However, this power should be used sparingly and only
when there is a legislative vacuum. In this case, there is no legislative void, as anti-
discrimination laws already exist, and the judiciary should not create new laws via
Article 142.

International Case: Goodwin v. United Kingdom (2002)

39
In the Goodwin case, the European Court of Human Rights acknowledged that while
transgender rights were essential, it emphasized the need for parliamentary action. This case
can be cited to argue that the judiciary should not overstep its authority, but rather allow
Parliament to address issues related to same-sex rights through legislation.

Potential for Misuse

Specific protection for same-sex couples could be open to misuse or frivolous claims,
potentially straining the legal system. The absence of clearly defined criteria for who
qualifies as a same-sex couple could lead to challenges in enforcement.

International Case: C v. S (2002) in Australia

In the C v. S case, an Australian court dealt with the complexity of determining same-sex
relationships, raising concerns about misuse. This emphasize the potential difficulties in
defining and identifying same-sex couples In India.

40
PRAYER ADVANCED
Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsel on behalf of the appellant humbly prays before this HON’BLE Court to
adjudge and declare that:

1. The Respondents urge this Hon'ble Court to uphold the provisions of the Special
Marriage Act, 1954, which do not recognize same-sex marriage, on the grounds that
the Act adheres to the prevailing legal framework in India. The Act's provisions are
consistent with societal norms and values and should not be declared unconstitutional.
2. The Respondents contend that while the right to marry is a fundamental right under
Part III of the Constitution, reasonable restrictions may be imposed to maintain social
order, morality, and public interest. Same-sex marriage, not recognized by the Indian
legal framework, falls within the ambit of such reasonable restrictions, given the
broader societal context and cultural values.
3. In the event that same-sex marriage is legally recognized, the Respondents submit that
there may be a need to consider a Uniform Civil Code to address the various rights of
spouses in such marriages. However, this should be a matter for the legislature to
determine, rather than the judiciary.
4. The Respondents assert that Amy and Mary have not demonstrated any specific
harassment by the police or neighbours that would warrant the extraordinary
invocation of Article 142 of the Constitution. The authorities acted within the
framework of existing laws and did not infringe upon the rights of the Petitioners.
and\or
The Respondents pray that this Hon'ble Court may uphold the established legal framework,
which does not currently recognize same-sex marriage, and refrain from making
pronouncements that could potentially disrupt the social fabric of India. The Respondents
also request the Court to dismiss the Petitioners' writ petition, as the grievances raised do not
merit judicial intervention.
For these and other equitable reasons, the Respondents most humbly pray for a dismissal of
the Petitioners' claims.

PLACE: COUNSELS FOR RESPONDENT’S

DATE:

41
 PRAYER ADVANCED
Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsel on behalf of the appellant humbly prays before this HON’BLE Court to
adjudge and declare that:

1. That this Hon'ble Court, in exercise of its extraordinary jurisdiction under Article 32
of the Constitution, to declares that the provisions of the Special Marriage Act, 1954,
which do not recognize same-sex marriage, to give legal recognition to such
marriages in India.
2. That this Hon'ble Court affirmatively declares that the right to marry a person of one's
own choice is a fundamental right under Part III of the Constitution, and that
reasonable restrictions shall not encroach upon this cherished right.
3. That this Hon'ble Court, in light of the recognition of same-sex marriage, directs the
Government of India to consider the need for a Uniform Civil Code to
comprehensively address various rights of spouses in same-sex marriages, including
maintenance rights, property rights (inheritance and succession), and protection
against cruelty.
4. That this Hon'ble Court, recognizing the need to safeguard the fundamental rights and
dignity of Amy and Mary, issue a directive, invoking its powers under Article 142 of
the Constitution, to ensure that they are protected from any form of harassment by
police, neighbours, or any other entity, and are allowed to lead their lives in
accordance with their personal choices and preferences.

and\or
The Petitioners, in the backdrop of the discriminations and challenges they face, implore this
Hon'ble Court to grant them the justice they rightfully deserve, so that they may legally
marry, securing their rights and dignity, and putting an end to the societal prejudices and
discriminations they have endured.
For this and all other equitable reliefs, the Petitioners shall ever pray.

PLACE: COUNSELS FOR APPALENT’S

DATE:

42