The Special Marriage Act can be applied to same-sex marriages through a liberal interpretation of the gender-neutral terms. However, the schedules to the act are different.

The First Schedule “Degrees of Prohibited Relationship” will have no application to same-sex marriages and applies only to heterosexual marriages.

The Second Schedule, which sets out the “Notice of Intended Marriage”, is completely gender-neutral. Read with Section 5, one can certainly argue that it applies to all types of marriages. The Fifth Schedule which deals with the “Certificate of Marriage Celebrated in Other Forms” has to be read with Section 16. The same has no application to same-sex marriages.

However, it is the Third and Fourth Schedule which deal with the declarations of the Bride and the Bride Groom and the Certificate of Marriage and require a detailed examination.

The Respondent Union Government can make three broad submissions.

Firstly, Indian culture, customs, and traditions do not recognise such types of marriages.

Secondly, many moons before Navtej Singh, at the time of the enactment of the act the legislature had no intention to permit same sex marriages.

Special emphasis may be made on the Third and Fourth Schedule of the Act which is to be read with Section 11. As per Section 11, the declaration “shall” be signed by the parties and three witnesses. This provision is mandatory and not directory.

Schedule Three requires separate declarations by bridegroom and bride. Even the Certificate of Marriage set out in the Fourth Schedule has to be signed by the “bridegroom” and “bride”. The words “bridegroom” and “bride” indicate that the Act will only apply to heterosexual marriages and not same sex marriages. Yet, the dictionary does not define these terms in relation to the opposite sex. As per Oxford English Mini Dictionary, the bride is “a woman at the time of her wedding” and the bridegroom is “a man at the time of his wedding”.

Thirdly, Section 36 and 37 simply cannot be applied to same-sex marriages as the District Court can “order the husband to pay” alimony pendente lite or permanent alimony “on the application of the “wife”.

The court would commit both a carnal and cardinal sin by not following the literal rule of statutory construction. The words “husband” and “wife” in the Act should be given their ordinary meaning. Read more via Leaflet