On October 14, in a welcoming development in the National Capital, a Division Bench of the Delhi High Court issued notice to the Union of India and Government of NCT of Delhi in two Writ Petitions. It impugned the Foreign Marriage Act, 1969, and the Special Marriage Act, 1954 “to the extent they do not provide for registration/recognition of same-sex marriages”.

South of the Vindhyas, reports also emerged towards the end of January 2020 that a gay couple from the southern state of Kerala, had filed a similar Writ Petition in the Kerala High Court. A notice was issued to the State of Kerala and the Union of India. The petition challenged the validity of Section 4 and Schedule 2 to 4 of the Special Marriage Act, 1954 on the ground that it restricts marriage only to a man and woman and is therefore violative of Articles 14, 15 (1), 19(1)(a) and 21 of the Constitution of India.

All the aforesaid petitioners sought directions in their Petitions to direct the respondent governments to register their respective marriages under the aforementioned statutes.

Post the judgment of the Constitution Bench in Navtej Singh Johar and Others v. Union of India it was a foregone conclusion that same-sex couples would eventually knock on the doors of the constitutional courts to seek recognition of same-sex marriages.

The Union of India has taken an adversarial and hostile stand in the Delhi High Court in a similar Petition to recognise same-sex marriage under the Hindu Marriage Act. Considering this, rather than attacking the provisions of the Special Marriage Act, 1954 (the Act) on the grounds of unconstitutionality, it could also be possible to assist the Court in interpreting the Act in such a way that its provisions can be made applicable to same-sex marriages. This approach would make it difficult for the government to dig in its heels and oppose same-sex marriage.

Gender Neutrality in the Special Marriage Act

The Special Marriage Act provides for registration of a “special form of marriage in certain cases”. According to its Statement of Objects and Reasons, the Act provides for “a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.” Read more via the Leaflet