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Notice of objection under SM Act goes against right to privacy, says SC

Justice Ravindra Bhat remarked that such provisions were 'based on patriarchy' and 'was created at a time when women didn't have agency'

Supreme Court

Bhavini Mishra New Delhi

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The Constitution Bench of the Supreme Court on Thursday said that the notice, inviting objections within 30 days, under the Special Marriage Act enables a violation of privacy.

The bench of Chief Justice of India(CJI)DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha continued hearing submissions on behalf of the petitioners in a batch of petitions about marriage equality rights for the LGBTQIA+ community.

Senior Advocate AM Singhvi, appearing for two petitioners, submitted that the ultimate guiding star for the present batch of matters is the intention of the statute which was to provide the institution of marriage to all, irrespective of religious belief and permission. He argued that while enacting the statute parliament could not have thought about homosexuals, but society has evolved since.

He said that the institution of marriage is very important and to provide a stable relationship, same-sex couples should also be granted the same right to marriage. He submitted that it is imperative to expand the scope of the framework to assimilate this evolution.

Various provisions of the Special Marriage Act can be interpreted to recognise same-sex couples, he said.

Thereafter, Singhvi argued that the 30-day notice and objection regime of the Special Marriage Act(SMA) is unconstitutional. He submitted that such a regime is only peculiar to the Special Marriage Act, of 1954 and directly strikes at the right to privacy, autonomy, and choice of the couple. He submitted that such a provision, which is only under the secular SMA, invites violence from possibly family members and is in contravention with the purpose of the Act.

Justice Ravindra Bhat remarked that such provisions were ‘based on patriarchy’ and ‘was created at a time when women didn't have agency’.

"This is an invitation to disaster and violence", Singhvi said.

"And the object was to protect! You're virtually laying them open to invasion by Collectors, District Magistrates, Superintendent of Police", CJI DY Chandrachud remarked.

Senior Advocate Raju Ramchandran, appearing on behalf of two other petitioners namely Kajal (a Dalit woman, employed at a bakery) and her partner - Bhavana (belonging to OBC, from Bahadurgarh, working as an accountant), submitted that the issue at hand is not limited to the concerns of the urban elite as alleged.

He argued that marriage is not just a gateway to socio-economic privileges but also sometimes societal protection from one's own parental families. He submitted that couples such as the Petitioners he represented did not have enlightened parents and thus they had to move to the Delhi High Court for protection orders. In light of this, Ramchandran submitted that the notice and objection scheme contemplated under the Special Marriage Act needs to be done away with. He prayed for a protocol to be put in place on the lines of the one set out in the judgment of Shakti Vahini granting protection from the Khaap Panchayat.

After the above arguments, Advocate KV Vishwanathan submitted that the “separate but equal” argument that the Union has sought to put forward cannot be countenanced. He said that the Union in its counter affidavit has stressed the importance of procreation, and has argued that as people in a same-sex marriage cannot procreate, they need not be granted the right to marry. In response, he submitted that even many heterosexual females above the age of 45 years may not be able to safely become pregnant, but are still allowed to marry. Therefore procreation cannot be a ground to deny the right to marry.

With respect to the Transgender Act, he showed a chart depicting the types of combinations of relationships that can be entered into and how they can be brought within the purview of the Special Marriage Act.

The arguments for the Petitioners have been led by Senior Advocate Mukul Rohatgi, Advocate Saurabh Kirpal, Senior Advocate Dr. Maneka Guruswamy, Advocate Arundhati Katju, and a team of advocates from Karanjawala & Co Advocates. 

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First Published: Apr 20 2023 | 11:26 PM IST

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