Provisions in the Special Marriage Act that require the issuing of a public notice are patriarchal and enable the invasion of privacy, the Supreme Court observed on Thursday, Bar and Bench reported.
The court is hearing a group of petitions seeking legal recognition for same-sex marriages in India. Some of the petitioners have urged the court to consider amending the Special Marriage Act to include same-sex marriages.
A five-judge Constitution bench headed by Chief Justice of India DY Chandrachud was on Thursday hearing arguments on provisions of the Act that require marriage officers to display a notice 30 days before the marriage, inviting any objections to the ceremony.
Senior Advocate Abhishek Manu Singhvi, representing some of the petitioners, pointed out that such requirements do not exist in personal laws based on religion. He argued that the notice period impinges on the fundamental rights of the petitioners.
Justice S Ravindra Bhat said: “This is only based on patriarchy. These laws were made when women did not have an agency.” The Special Marriage Act was passed in 1954.
Chief Justice Chandrachud also said that such provisions leave couples “open to invasion by the society”, including the superintendent of police or district magistrate, according to Bar and Bench.
The chief justice, however, said that if the intent of the legal provisions was only to prevent void marriages, the issuing of such notices could be the least restrictive method. Void marriages are those that are unlawful in the jurisdiction where they took place, such as child marriages.
Nevertheless, Chief Justice Chandrachud remarked: “There is a very real likelihood that this section will disproportionately impact if one member is from a marginalised or minority community.”
‘SC had contemplated marriage-like relationships in 2018 verdict’
The chief justice also said that when the Supreme Court decriminalised homosexuality in 2018, it had implicitly contemplated the existence of “stable, marriage-like relationships” between same-sex couples, The Hindu reported.
In the Navtej Singh Johar case of 2018, the Supreme Court had decriminalised homosexuality in India. A five-judge Constitution bench had unanimously held that the criminalisation of consensual gay sex under Section 377 of the Indian Penal Code was “irrational, indefensible and manifestly arbitrary”.
“The moment we said homosexuality is no longer an offence under Section 377 [of the Indian Penal Code], we necessarily contemplated that there could be a stable, marriage-like relationship between two persons who do not treat these as chance encounters but as something more than that,” Chief Justice Chandrachud said.
The Centre has opposed the petitions arguing that same-sex marriages are “not comparable with the Indian family unit concept”. It claimed that petitions seeking recognition for same-sex marriages represent “urban elitist views for the purpose of social acceptance”.
At Tuesday’s hearing, the Centre had contended that the matter of whether a law should be made to recognise same-sex marriages should be left to Parliament.
In an affidavit before the court, the government also sought directions to add all states and Union Territories as parties to the case.
The affidavit submitted that the case involves the legislative rights of the states under the seventh schedule of the Constitution and the rights of the residents of the states. The seventh schedule deals with the division of power between the Centre and the state.
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Two petitioners explain why same-sex marriage case is not an urban-elitist concept
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