The Supreme Court is currently examining whether the law as it stands permits marriage between non-male+female couples, or couples where the partners may be of the same sex or could be anywhere in the gender spectrum. The proposition is that if the law does not permit such marriage, it is unconstitutional since it violates the fundamental rights of such persons.
The material benefits of marriage, whether economic (pension, succession), social (housing), political (citizenship, visas), medical (life or medical insurance) or others, are available only by producing a marriage registration certificate. The importance of these benefits cannot be overstated.
Non-male+female couples are denied these benefits because their relationships are currently not being registered under any law. Some countries have created the ‘civil partnership’ to register such relationships. In India we have only the various matrimonial laws.
Generally, all matrimonial laws provide a process for getting married (‘solemnisation’) and consequent registration of marriage, i.e., the marriage is solemnised and registered under the same law. The religious matrimonial laws (or personal laws) all restrict marriage to male-female relationships.
The Special Marriage Act, 1954 is a secular law providing for solemnisation and consequent registration (covered by ss.4 – 14). Unfortunately the language used is gender specific, i.e., only contemplates a male-female marriage.
Therefore all laws dealing with solemnisation and consequent registration are gender specific and do not provide any scope for non-male+female marriage and registration. This is currently under challenge as unconstitutional.
Presently, the Supreme Court has decided not to examine the personal laws, and to restrict itself to the question of whether the Special Marriage Act, 1954 can somehow be interpreted to include non-male+female marriage and registration.
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Attention has been focussed on the language used in ss.4 – 14, and whether the words ‘male’ and ‘female’ used therein can be read as ‘persons’, ‘spouses’, or other gender neutral words.
The problem is that s.4 specifies different minimum age restrictions – 21 for male and 18 for female. A gender neutral interpretation creates confusion as to what will then become the minimum age. Similarly, the use of ‘male’ and ‘female’ with respect to age limits provides a guidance on interpreting the rest of the conditions in s.4. One of these is the restriction on marriage between persons who are within prohibited degrees (too closely related to each other).
Seemingly a minor issue of semantics. But in Constitutional terms, a major one, because the Supreme Court would literally be creating a new law. This is opposed by the Government and various other parties. According to them, it may create a precedent which may be abused by future petitioners, and may upset the balance of power with Parliament which exists to create laws.
The answer may lie in s.15 of the Special Marriage Act, 1954. It is an interesting and unique provision. It does not include solemnisation. Its deals with couples who are already married, and want to register their marriage.
S.15: Registration of marriages celebrated in other forms
Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:–
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship:
Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
As highlighted above, all it requires is the couple should have celebrated their marriage ceremony in any form. The heading declares this. It is totally unrestricted. This is important because many communities, have their own practices of marriage, which are not expressly codified. These practices are accepted for registration under s.15. It is important to note that s.15 applies equally to heterosexuals, believers, atheists, agnostics, and any other persons. It does not discriminate.
It is gender neutral as it refers to ‘the parties’ and not ‘male’ / ‘female’. It requires a minimum age of 21 years for both parties. Hence the interpretation issues under solemnisation laws, whether personal laws or s.4, is avoided.
Because of the gender neutral language, even the reference to ‘prohibited degrees’ would not be a hurdle. Eg., if 2 men have celebrated their marriage and want to get it registered, they should not be related to each other in terms of Part 1, Schedule 1. For women, Part 2, Schedule 1 applies. For a person of undisclosed gender identity, the same condition, that they should not be related to each other under Schedule 1, will apply. The logical interpretation in such a case would be that they must not be related to each other under the terms of both Parts 1 & 2, since the language used is that ‘the parties’ are not within the prohibited degrees.
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The phrase “living together as husband and wife” may at first glance appear to be gender specific. However, the use of ‘as’ before ‘husband and wife’ would qualify ‘living together’, i.e., it connotes a sexual relationship, rather than mere cohabitation.
According to the Oxford English Dictionary: “the word ‘as’ is a preposition that can be used in different ways in English language. It can be used to indicate the function or character of someone or something. For example, “He works as a teacher” means that he works in the capacity of a teacher.”
This interpretation follows the rule of adopting the plain meaning of the law, and using a dictionary to find that plain meaning. Therefore, since non – heterosexual sexual intercourse is legally valid, a non – male + female couple can very well ‘live together as man and wife’.
s.18 states that from the date of registration, the marriage will be deemed to be a marriage solemnized under the Act with all its attendant consequences. Therefore, the Special Marriage Act, 1954 makes no distinction between a marriage ‘solemnised under s.4’ or simply ‘registered under s.15’ to enable the couple to avail the material benefits of being married.
s.15 may therefore offer a simpler route for the registration of non – male + female marriages, since it requires minimal interpretation and Constitutional intervention.
Vineet Subramani is an advocate.