(HAM CODELIMCOS Appellants STATE OF UTTAM PRADESH 2. SABHYATA SANGH Respondents MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE SUPREME COURT OF INDISTHAN {EMORIAL ON BEHALF OF RESPONDE \ND FILED BY THE COUNSELS FOR THE RESPONDENTSS JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEIALE OF RESPONDENT- TABLE OF CONTE) TABLE OF ABBRIVIATIONS... INDEX OF AUTHORITIES... STATEMENT OF JURISDICTION.... STATEMENT OF FACTS.. ‘STATEMENT OF ISSUES...... SUMMARY OF ARGUMENTS......ccsecse . 29 ARGUMENTS ADVANCED, oll ISSUE 1: WHETHER THE HINDU MARRIAGE ACT OF 1955 CAN BE INTERPRETED SO AS TO INCLUDE SAME-SEX MARRIAGES. WITHIN ITS SOPE?... u ISSUE 2: WHETHER REFUSAL TO GRANT VALIDITY TO SAME-SEX MARRIAGE WOULD BE A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE PERSON GUARANTEED IN ARTICLES 14, 19(1)(a), 21, AND 252.0 sneer ISSUE 3: WHETHER THE SCOPE OF SAME-SEX MARRIAGE TEND TO AFFECT OTHER ATTENDANT ~—- RIGHTS, SUCH. AS-— ADOPTION. = AND MAINTENANCE?, ISSUE 4: WHETHER THE APPELLANTS ARE ENTITLED TO HAVE A FAMILY?....20 PRAYER. MYTTTTTIT Tree lb sseccer=-— Scanned with CamScannerS.8 JAIN SUBODIT LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT~ LIST OF ABBREVIATIONS SYMBOLS ABBREVIATION & ‘And Sec! Scetion HMA Hindu Marriage Act | ve Versus Hon'ble Honorable ‘Cons ‘Constitution HSA Hindu succession Act | Co. ‘Company: | Pvt. Private Maint. Maintenance Poss. Possible Inc. Incorporated Adopt Adoption Inv. Tnvalid Null. ] Nullification HAMA Hindu Adoption and Maintenance Act Scanned with CamScannerSS JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- Abhijeet Lyer Mitra versus Union of India [W.P.(C) 6371/2020 & CM APPL. 42707/2021, 43274/2021] 2. Hurpurshad vy. Sheo Dayal 3. Navtej Singh Johar V. UOI] AIR 2018 SC 4321; W. P. (Cr) No. 76 0f2016; D. No. 14961/2016] 4, Ram Krishna Dalmia y. Justice Tendolkar [1958 AIR 538 1959 SCR 279] 5. Ranjit D. Udeshi y. State of Maharashtra [1965 AIR 881, 1965 SCR (1) 65] > Statutes Referred: Constitution of India, 1949 Hindu Marriage, 1955 Hindu succession Act, 1956 Hindu Adoption and Maintenance Act, 1956 Indian Penal Code, 1860 Special Marriage Act, 1954 International Human Rights Act, 1998 > Textbook References: MB. Jain-Indian Constitutional Law-Lexis Nexis, New Delhi, 7th Ed., 2015 Prof. T. Bhattacharyya-The Indian Penal Code-Central Law Agency-10th Edn.2019 Narender Kumar- Constitutional Law Of India Hindu Marriage Act, 1955 Special Marriage Act, 1954 Hindu Adoption and Maintenance Act, 1956 > Legal Research Tools: SCC online (Iutps: www.seconline.com) Indian Kannon (bitps: ‘indliakanoon.org) Live Law (https: www. livelas.in) ‘Manupatra (hitps: mobile. manupatra.in) Scanned with CamScannerS$ JAIN SUBODIT LAW COLLEGE INTRA MOOT COURT COMPETITION, -MEMORIAL ON BEHALF OF RESPONDENT- oe STATEMENT OF JURISDICTION The Appellant has filed the appeal before the Hon'ble Supreme Court of Indisthan, in the matter ‘of Shubh & Mangal & Ors. Vs. State of Uttam Pradesh & Ors., under Article 133 of the Const. of Indisthan. The respontlent reserves the right to challenge the same. The present memorandum sets forth the facts, contentions & arguments. Scanned with CamScanner‘SSJAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION MEMORIAL ON BEHALF OF RESPONDENT= Eo SUMMARY OF FACTS MOST RESPECTFULLY SHEWETH: > That Shubh and Mangal are gay, aged 35 and 40, respectively, and they work as data entry operators in Aractic Private Limited in Santhali, Uttam Pradesh in Indisthan with four other friends from the past eight years and manage their affairs through meagre salaries Shubh is unable to understand his sexuality and is constantly discriminated against by his friends and family. Shubh and Mangal fell in love eventually and went out together discreetly without informing anybody after saving some money. They had also made plans to live together and raise a child. Mangal's family discovered where he was living through some relatives. After a fight ‘between Mangal’s friends and family, the family left after delivering threats towards both Shubh and Mangal. Shocked by the events, both Shubh and Mangal become cautious and decided to get ‘married and try to move places as soon as possible. Shubh’s uncle Ramesh took a keen interest in Shubh’s well-being. When Shubh was abandoned, he stayed with Ramesh for a few years and continued to remain in touch after he decided to live by himself ‘When Shubh told Ramesh about Mangal and their plans o get married and live together 48 a couple, Ramesh was surprised at this new development, but being a well-wisher, he wanted to help him out He had called Shubh to meet for lunch on the same day Mangal’s parents visited Shubh. ‘Afier hearing about the fight, Ramesh went with Shubh to a police station near his house ‘0 seek protection for Shubh andl Mangal in case they were to encounter any danger, Two weeks affer the events with Mangal’s family, Shubh and Mangal, along with their fiends, met at the Mahankali Temple in Dharam Nayar and, in line with Hindu customs, got married Scanned with CamScanner5.9JAIN SUBODILLAW COLLEGE INTIs MOOT COURT COMPETITION “MEMORIAL ON BEHALE OF RESPONDENT- — 7 Assoonas marriage photos became public, a local Sangh of tha ith” bepan to harass and threaten the newlyweds, saying that they were violating the institution of marriage and that LGBTQ people could not tie the mangakavutra and put gh also put out an advertisement in the newspaper about the sanctity and importance of marriage being diluted and withered away by marriage between gays, ‘They approached the High Court of Uttam Pradesh for nullification of marriage, The decision of the High Court was in favour of Sabhyatha Sangh, Hence, Shubh and Mangal being aggrieved of the decision decided to yo on appeal, Along with other LGBTO organizations in the country, they have approached the Supreme Court of Indisthan to recognize their marriage and extend marital rights Scanned with CamScannerS.S JAIN SUBODITLAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- EEE ISSUES FOR CONSIDERATION |. WHETHER THE HINDU MARRIAGE ACT OF 1955 CAN BE INTERPRETED SO AS TO INCLUDE SAME-SEX MARRIAGES WITHIN ITS SOPE? . WHETHER REFUSAL TO GRANT VALIDITY TO SAME-SEX MARRIAGE, WOULD BE A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE PERSON GUARANTEED IN ARTICLES 14, 19(1)(a), 21, AND 25? WHETHER THE SCOPE OF SAME-SEX MARRIAGE TEND TO AFFECT OTHER ATTENDANT RIGHTS, SUCH AS ADOPTION AND MAINTENANCE? |. WHETHER THE APPELLANTS ARE ENTITLED TO HAVE A FAMILY? Scanned with CamScannerSS AIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- SUMMARY OF ARGUMENTS ISSUE_1: WHETHER THE HINDU_MARRIAGE ACT OF _1955_CAN_ BE INTERPRETED SO_AS TO INCLUDE SAME-SEX MARRIAGES WITHIN ITS SOPE? {tis humbly submitted before the Hon'ble Supreme Court that the definition of ‘Marriage’ under the Hindu Marriage Act, 1955 Marriage refers to solemnization of ties between a ‘man’ and a ‘bride’. A person who is born as a ‘gay’ and recognizes himself as a bride there is no explanation as to inclusion of gay in the definition of ‘bride’. Hence, the appellants cannot validate the marriage as the definition of ‘bride’ cannot be changed or contested. The Hon’bh High Court of Uttam Pradesh expressed the same while dismissing the matter, ‘SUR _2: WHETHER REFUSAL TO GRANT VALIDITY TO. SAME-SEX MARRIAGE WOULD BE _A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE PERSON GUARANTEED IN ARTICLES 14, 19(1)(a),21 AND 25 1148 most humbly submited before the Hon'ble court that No, refusal to grant validity to same- Sexmarriage would be violation of the Fundamental Rights of the person guaranteed in Article 14, 19(1)@), 21 and 25. LGBTQIA+ have the fundamental rights but they have not any right ‘© extent the scope ofthe Articles as per one’s own whims and fancies as the Article is bounded by certain restriction also, Scanned with CamScannerSSJAIN SUBODI LAW COLLEGE INTRA MOOT COURT COMPETITION MEMORIAL ON BEHALF OF RESPONDENT. Sn EEE anemmmeeeeed ISSUE THE SCOPE OF SA x MARRIAGE TEND TO AFFECT. OTHER ATTENDANT RIGHTS, SUCH AS ADOPTION AND MAINTENANCE? It is to bring before the Hon'ble Supreme Court that section 7 and 8 of Hindu Adoption and Maintenance Act, recognized valid adoption only if itis done by a male or female and thus the Appellants are out of the scope of application of this act. That the evidences suggest that children raised by the gay couple or homosexual are more likely to be experience gender and sexual disorders. ISSUE 4: WHETHER THE APPELLANTS ARE ENTITLED TO HAVE A FAMILY’ It is most humbly submitted before the Hon’ble court that same-sex marriage is not compatible with the concept of an "Indisthan family unit". Family consists of "a husband, a wife, and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out ofthe union between the two - who are reared by the biologival ‘man as father and the biological woman as mother”, The parties entering into marriage creates an institution having its own public significance, as it is a social institution from whieh several rights and liabilities flow. Seeking declaration for solemnization/registration of marriage has ‘mote ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Scanned with CamScanner|RODI LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAI ON BEHALE OF RESPONDENT i a ADVANCED ARGUMENTS 1. WHETHER THE HINDU MARRIAGE ACT OF 1955 CAN BE INTERPRETE! SO AS TO INCLUDE SAME-SEX MARRIAGES WITHIN ITS SOPE? 1.1 No, Hindu Marriage Act of 1955 cannot be interpreted to include same-sex marriage within its scope because The institution of marriage, which is a legally recognized and legally defined relationship between two persons, has a great social significance, as it greatly enjoys rights and obligations, especially those of property, succession, inheritance and related rights, ultimately from the institution of marriage. 1.2 Hindu marriage is "a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure." Section 5 of this Act prescribes the essentials of a Hindu marriage. As per this section, two Hindus, one of whom can be identified as bride and other the bridegroom, can solemnize a marriage, unless it is barred by subsection (iii), (iv), and (v) of the section Indisthan society is basically "a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws. There is no acceptance of the institution of marriage between two individuals of the same gender either in personal laws or codified statutory laws. Hence, whether legal sanction can be accorded to same sex marriages is not an issue that ean be decided by way of judicial adjudication but by the legislature, The jurisprudence Scanned with CamScanner13 14 SS IAIN SUBODI LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- of any Nation, be it by way of codified law or otherwise, evolves, based on societal values, beliefs, cultural history and other factors. Therefore, it is submitted before the Hon'ble court that the Appellant's petition does not stand ‘on the fundamental grounds ofa marriage under Hindu Law. Moving further that the scope and meaning of the words ‘man’ and 'bride' under HMA, 1955 As per Section 5 of this Act, only a marriage of a bride and a bridegroom is valid and recognized. The terms "bride" and "bridegroom" are gendered terms. It necessarily translates to "woman" and "man" on their wedding day. Thus, it provides no recognition to same-sex marriages and it is also stated by the Hon'ble High Court in the case Abhijeet Iyer Mitra versus Union of India’ _shat marriage is only permissible between a biological man and a biological woman, It further ayerred that the institution of marriage comes under larger State interest and not merely whether two individuals can rightfully exercise their choice or not, Adding to the same, it also argued that no codified law or uncodified practice allows for same sex marriage. However, no law regarding the same-sex marriage has been enacted, Since it is normal Understanding that the husband is considered to be a male and the wife is Sonsidered to be a female. But in the case of LGBTQ marriage since both the Partners are ofthe same gender this definition can't be applied WPCC) 63 171/2020 & CM APPL. 42707/2021, 4327412021 Scanned with CamScannerS.SJAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION “MEMORIAL ON BEHALF OF RESPONDENT: ee 1.5 Moving farther that the Codified Hindu Law has given an important place to ‘the custom and usages and considered it as a parent of Hindu law. Custom under “Hindu Marriage Act 1955" has been used in three situations. + Eitstly, the marriages can be solicited as per the customary tradition which is followed by the party. Secondly, divorce can be obtained by parties on the prevailing custom and usages. Thindly, adoption can be done as per the customary rules. Section 3 of Hindu Marriag Act, 1955 defines custom as a rule which is followed for a Jong time and has obtained the force of law among people of the Hindu community. 1.6 Italso stated that custom must be ancient, must be reasonable, and it should not be in derogation to the laws of the country. Moreover, such a custom must not be immoral, or opposed to public policy, or expressly forbidden by law. It is Pertinent to note that Customs should not be against the moral values or set of ethical standards that the society follows. Marriage also is a customary practice in Indisthan and can be defined as "a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure." Hence the fundamental existence of the institution of marriage is based upon our old aged ‘customs that itis a ritual to be performed between a man and a woman. In Hurpurshad v. Sheo Daval the Privy Council observed that "a custom is a rule which in a particular family, or 4 particular caste or community, or in a Particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable” P FFECOCLOCCPOOCOLL EEL L 228811111 9712977 Scanned with CamScannerSS JAIN SUBODIT LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT= 1.8 Allowing the same-sex marriage will hamper the customary rule of institution oof marriage and will be immoral and against public policy. 2. WHETHER REFUSAL TO GRANT VALIDITY TO SAME-SEX MARRIAGE WOULD BE A VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE PERSON GUARANTEED IN ARTICLES 14, 19(1)(a), 21, AND 25? Article 21 of the constitution which embodies the right to life and personal liberty is the most organic and progressive provision in the constitution. A plain reading into the article 21 gives an insight that privacy is an important facet protected by article 21. However, one cannot extend the scope of the article as per one's own whims and fancies as the article is bounded by certain restrictions also. The article does not explicitly state the right to family as a fundamental right ‘The Supreme court in the case of in the Navtej Singh Johar V, UOT? has said that “article 21 does not extend the right to privacy to include a fundamental right in the nature of aright to marry by two individuals of same gender". The appellants therefore cannot be extended the right to adopt or to start a family in the view of this article 21. Moreover, it is not "permissible" for the court to override the legislative intent with regard to limiting the legal recognition of marriage to heterosexual couples. The fundamental right under Article 21 subject to procedure established by law and the same cannot be expanded to include the fundamental right for a same sex marriage to be recognized under the laws of the country which in fact mandate the contrary. * AIR 2018 SC 4321; W. P. (Cr.) No. 76 of 2016; D. No, 14961/2016, Scanned with CamScannerS.S JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- ES 2.3 Marriage between two individuals of the same gender is "neither recognized nor accepted in any uncodified personal law or any codified statutory law" and so does the right to start or have a family. Denial does not amount to violation of article 14 and 15. It is submitted before the Hon'ble court that equality under article 14 means that all persons should be treated equally no matter whether they are poor or rich, male or female, upper caste or lower caste. This state cannot provide any special privileges to anyone in the country. 2.4 However, the court while giving the test of reasonable classification in the case of Ram Krishna Dal ia v. Justice Tendolkar?, described the jurisprudence of equality before the law and that there is a dependable assumption in favor of the constitutionality of a rule and the burden is upon him who attacks it todemonstrate that there has been a reasonable transgression of established constitutional standards." Since article 14 forbids class legislation and not reasonable classification the distinction between man, woman and gay does not amount to irrational classification. 2.5 The court also upholding the validity of Sec 377 has stated that it did not create any class and was applicable to both heterosexuals and homosexuals equally. It criminalized the act and not the person. Also, Article 15 prohibits discrimination only on the ground of gender and not on the ground of sexual orientation, 2.6 This is evident from the fact that Article 15(3) provided for special provisions for women and children, thereby implying that Article 15 covered only women in its ambit, Thereby the appellants contention of violation of their rights under articles 14 and 15 does not stand on the grounds of constitutional morality. There has been no discrimination made against the appellants thereby no violation of their fundamental rights has occurred. 2.7 Further there is no violation to appellants right under Article 19 and 2S. Article 19 which talks about freedom of speech and expression comes with a set of reasonable restrictions on such freedom, Freedom to express does not means * 1958 AIR 538 1959 SCR 279 Scanned with CamScannerSS JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION MEMORIAL ON BEHALF OF RESPONDENT: aan eipeneememmeeeeeemeneneneeeemeeeeeeeemme=seeead fone can alter the boundaries of morality and decency. The test of compelling ‘State interest was satisfied and whether enforcement of morality is a sufficient enough reason to restrict the fundamental rights. Since, decency or morality are constituted one of the grounds of reasonable restrictions on the freedom of speech and expression under Article 19(2). The Hon'ble court in the Ranjit D. Udeshi v. State of Maharashtra‘ held that the Courts needed to balance between freedom of speech and public decency ‘and morality, Hence, allowing same sex marriages against the fundamental principle of morality and decency. It is to be noted that extending marriage rights to same-sex couples could undercut the conventional purpose of marriage. Also, monogamous heterosexual marriages contend, ‘That same-sex relationships cannot be considered marriages because marriages, by definition, necessarily involves the uniting of two members of the opposite sex. 1965 AIR 1, 1965 SCR (1) 65 “PULbe ssbb sesveverr~~ Scanned with CamScannerSS JAIN SUBODITLAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALT OF RESPONDENT 3. WHETHER THE SCOPE OF SAME-SEX MARRIAGE TEND TO AFFECT HER ATTENDANT RIGHTS, SUCH _AS___ADO) NI MAINTENANCE? 3.1 Itis most humbly submitted before the Hon'ble court that gay couples have not any adoption and maintenance rights under HAMA. It is to be noted that if'a gay wish to be a parent, the adoption of a child, In Indisthan, adoption is governed by both secular as well as religious laws. In the case of Hindus, it is governed by Hindu adoption and maintenance Act, 1956. 3.2 Adoption is a process that impacts the life of a child and changes it completely. thas great implications, Hence, while dealing with the process of adoption, the sole criteria should be the welfare of the child. In Indisthan, adoption is governed by personal laws and thus, every religion has its own rules and regulations. It is a universally acceptable norm that adoptions should take place only when they are in the best interest of the child, 3.3 God has made human beings for various purposes and establishing sexual relations also has a purpose. That purpose according to every religion and every beliefacross the world is to procreate, to have children. Thus, any such physical relation that will not ultimately lead to legitimate children is condemned by all religions unanimously. Hence, obviously since homosexual relations or bestiality in no way can naturally lead to procreation of children, all such relations fall under the ambit of against the order of nature. Every single religion or community or society in this World, irrespective of how liberal it may become, has not given up on its core principles. And all religions irrespective of how different they are, unanimously condemn, oppose and criminalise such relations between individuals. 3.4 Hindu Adoptions and Maintenance Act, 1956 cy Scanned with CamScannerSS IAIN SUBODIH LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- a ‘The Hindu Adoptions and Mi ntenance Act, 1956 governs the legal process for Hindu adults to adopt a child and their legal responsibility to support diverse family members, However Tand 8(¢) of the HAMA, if the spo according to Sections is insane, has abandoned the world, o ha forsaken his or her children, such authorization will not be required, Similarly, this rule permits unmarried men and women to adopt a child if they are of sound mind and have reached the age of majority. Accord to Section 2(1) of the Act, a Hindu does not just refer to someone who practises Hinduism but also includes Buddhists, Jains, Sikhs, Virashaiva, Lingayat, and members of the Arya Samaj. Brahmo and Prarthana devotees are also included in the Hindu definition. In effect, the Hindu Adoption and Maintenance Act applies to everyone who is not a Chi tian, Muslim, Parsi, or Jew and lives in Indisthan. The words “spouse” and “wife” are used in Sections 7 and 8 of HAMA. implying that the Act does not recognise adoption by same-sex couples. Furthermore, the ability for adoption is explained for Hindu males and Hindu females leaving a grey area when it comes to applying such regulations to third-gender couples. 3.5 Adoption Regulations, 2017 + In terms of restrictions, the Adoption Regulations, 2017 is far more stringent than the HAMA. Similar to HAMA, unmarried men and women are eligible to adopt as long as they are mentally, emotionally, and financially healthy and do not have a life-threatening illness. Apart from that, the Regulations prohibit a single man from adopting a female child, but it does not prohibit a woman from adopting a boy child. This is in contrast to Section 11(iii) of the HAMA, which allows a single ‘male to adopt a girl child ifthe two are at least twenty years apart in age. 3.6 Juvenile Justice (Care and Protection of Children) Act, 2015, Scanned with CamScannerSS JAIN SUBODI LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON BEHALF OF RESPONDENT- See © This Act was enacted in the year 2015 to unify and revise the laws associated with children who are asserted and found to violate the law. The child requires care and security by taking into account their basic demands through legitimate consideration, assurance, advancement, treatment, and societal re-mix, These must be combined with child- friendly strategies for problem-solving and issue-resolution for the child's most progressive growth, Section 57 of the JJ Act covers the eligibility of Prospective Adoptive Parents (“PAPS"). "No kid shall be placed in adoption to a couple unless they have had at least two years of solid marital relationship,” according to one of the requirements, As same-sex marriages are not recognized in Indisthan, same-sex couples are unable to establish a two-year stable marital connection, making them unsuitable to be PAPs. Bat in this case, Shubh and Mangal both are gays. Thus, for the adoption of. child there should be a woman or a single man there is no scope of adoption for the same sex couple. 3.7. That same sex couples are not entitled to maintenance rights. That The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting children by a Hindu adult, and with the legal obligations of a Hindu to provide "maintenance" to various family members including their wife or parents, and in-laws. The term *gay’ have no place in HAMA thereby not granting adoption andmaintenance rights to ‘Gays’. For instance, Section 27(1-A) of the Special Marriage Act, 1954 provides the grounds on which a wife can take divorce but in case of LGBTQ marriages there is confusion regarding the term wife, So, reading into the if'same sex couples do not have a right to divorce, then right to claim maintenance remains out of the question, Scanned with CamScannerSS JAIN SUBODH LAW COLLEGE INTRA MOOT COURT COMPETITION MEI I is most humbly submitted before the Hon'ble court that same-sex marriage is not compatible with the concept of an "Indisthan family unit". Family consists ofa husband, a wife, and children who necessarily presuppose a biological man asa ‘husband!, a biological woman as a ‘wife’ and the children born out of the union between the two - who are reared by the biological man as father and the biological woman as mother". The parties entering into marriage creates an institution having its own public significance, as it is « social institution from which several rights and liabilities flow. Secking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. It is humbly submitted that the marriage between a man and a woman is the bedrock of a healthy society because it leads to stable families and, ultimately, to children who grow up to be productive adults. Allowing gay and lesbian couples to wed, will radically redefine marriage and further weaken it at a time when the institution is already in deep trouble due to high divorce rates and the significant number of out-of-wedlock births. Moreover, giving gay couples the right to marry will ultimately lead to granting people in polygamous and other nontraditional relationships the right to marry as well. ‘What society should be about is encouraging, what's best for children, And we know, what's best for children is a mother and a father who are the parents of that child, raising that child ina stable, married relationship, and we should have laws that encourage that and support them to grow in a better environment. It is to bring to the notice that children of homosexuals will be ostracized. harassed and ridiculed by their peers for having homosexual parents. Again, however, the cause of the disadvantage is not the homosexuality of the parents Scanned with CamScannerSS JAIN SUBODIE LAW COLLEGE INTRA MOOT COURT COMPETITION - MEMORIAL ON BEALE OF RESPONDENT: eT assment and itself but the reactions from the social environment. Moreover, h rental features like obesity or embarrassment is a consequence of many other unemployment 4.5 That Section 377 IPC is gender neutral and covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act. Studies emphasized that anal intercourse between two homosexuals is a high risk activity, which exposes both the participating homosexuals to the risk of HIV/AIDS and this becomes even grave in case of a male bisexual having intercourse with female partner who may not even be aware of the activity of her partner and is yet exposed to high risk of HIV/AIDS. 4.6 That there is no violation of fundamental rights of the Appellants as Article 19 talks about freedom of speech and expression which comes with a set of reasonable restrictions on such freedom. Freedom to express does not means ‘one can alter the boundaries of morality and decency. The test of compelling state interest was satisfied and whether enforcement of morality is a sufficient ‘enough reason to restrict the fundamental rights. Since, decency and morality are constituted one of the grounds of reasonable restrictions on the freedom of speech and expression under Article 19(2). 4.7 The court in the case Ranjit D, Udeshi v. State of Maharasthra’ held that the courts needed to balance between freedom of speech and public decency and morality. 4.8 Hence, allowing same sex marriage is against the fundamental principle of morality and decency. It is to be noted that extending marriage rights to same sex couples could undercut the conventional purpose of marriage. Also, ‘monogamous heterosexual marriages contend that same sex relationships cannot be considered marriage because marriages, by definition, necessarily involves the uniting of two members of the opposite sex * 1965 AIR #81. 1965 SCR (1) 65 Scanned with CamScannerSS JAIN SUBODIE LAW COLLEGE INTRA MOOT COURT COMPETITION -MEMORIAL ON HEHALE OF RESPONDENT: EERIE PRAYER In light of the issues raised, arguments advanced and authorities cited, it os humbly prayed Before The Hon'ble Supreme Court of Indisthan to be pleased to: (a) DECLARE that Shubh and Mangal are not entitled to marriage, adoption and maintenance as per Hindu Laws. (b) DECLARE that the Appellants are not entitled to start a family together as the gay marriage or same sex marriage is not only against the moral principles of Hindu religion taking from which customs and usages is Hindu Marriage Act, 1955 made but also against the order of nature promotion of which may lead to society imbalance and threat to mankind. (©) Pass any other writ, order or direction that this Hon'ble Court may deem fit and necessary in the interest of justice, For this act of kindness, the respondent shall forever pray. DATE. PLACE: Respecttfllly submitted by ‘Counsel for the Respondents Scanned with CamScanner