Till Law do us apart? Homosexual couple approaches Kerala HC seeking to register marriage under Special Marriage Act

A writ petition challenging provisions of the Special Marriage Act, 1954 has been filed before the Kerala High Court. And if the prayers sought in the plea are granted, it would indeed make for a "special" marriage..The petition has been filed by Kerala's "first openly homosexual couple", who seek to get their marriage registered under the Act..The Petitioners are aggrieved by the impugned provisions of the Special Marriage Act, 1954 whereby the law provided therein only permits a heterosexual (opposite sex) couple to get married and a homosexual couple like that of the Petitioners is denied equal access to the institution of marriage. Petitioners state that the impugned provisions of the Special Marriage Act, 1954 violate the fundamental rights of the petitioners and are thus illegal and unconstitutional to that extent.Petition filed before the Kerala High Court by a homosexual couple.The petition charts the course of the progression of LGBTIQ rights in India, making reference to the Supreme Court judgments in NALSA and Navtej Johar, which recognised the identity transgenders and decriminalised gay sex respectively. Reference is also made to the recently passed Transgender Persons (Protection of Rights) Act, 2019..The plea filed by Nikesh and Sonu goes on to detail their story."They had met each other in May, 2018 and they had fallen in love with each other. After a relationship of 2 months, they decided to get married. Being believers in god and in Hinduism, they explored the possibility of a religious marriage. Many, to whom they went for advice, turned them down, dis-encouraged them stating that believers would not take it lightly if they contract a temple wedding and that Hinduism does not recognise gay marriages.".Fearing violence and backlash from other believers, the couple held a secretive marriage ceremony at the parking lot of Kerala's Guruvayoor Temple. Knowing that temple authorities would not issue them a certificate, the couple decided to get married under the Special Marriage Act. However,."To petitioners’ utter shock, the Special Marriage Act, 1954 and its provisions are found to be discriminatory as well because the Act recognises only marriages between persons belonging to opposite sex alone. Though the text of the Act does not exclude homosexual unions from its ambit expressly, Section 4 and Schedules 2-4 to the Act carry a heterosexual undertone in its language as it shows marriage as an affair between a male and a female or between bride and bridegroom.".The plea goes on to state that being married confers upon the partners certain rights pertaining to right to maintenance, right of inheritance, a right to own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers etc. However, homosexual couples are denied access to these privileges..Citing the Supreme Court's ruling in Navtej Johar, the petitioners state,"It is submitted that right to sexual identity will be incomplete and non- workable unless substantial rights are recognised as a consequence to identification. Identification must be supplemented with dignity and dignity cannot be attributed unless a person is given the right to choose his own way of life which includes selection of a partner to live with.".It further avers that non-recognition of marriage among homosexuals violates the rights guaranteed under Article 15(1) of the Constitution of India, which prohibits discrimination on grounds of sex. In this regard, it is stated,"The impugned provisions of the Act of 1954 are based on irrational and discriminatory stereotype gender roles assigned by the society to man and woman and thus cannot pass the test of non-discrimination imposed by Article 15(1) of the Constitution.".Another contention made is that the refusal of the law to recognize and accept homosexual marital unions is a violation of the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution.It is also argued that Article 19 (1)(c) of the Constitution, which protects a citizen’s right to form an association or a union, also applies to marital unions..Citing KS Puttaswamy v. Union of India, the petition states that non-recognition of marriage of homosexuals is an attack on individuality and autonomy, which are essential to the right to privacy guaranteed to an individual..The petition further states that the Supreme Court has held that the right of an adult to choose one’s own partner is a recognized fundamental right under Article 14 and 21 of the Constitution of India..On these grounds, among others, the petitioners have made the following prayers before the Kerala High Court:i) declare that Section 4 of the Special Marriage Act, 1954, to the extent that it restricts solemnization of marriages only between a man and a woman, is unconstitutional and void;ii) declare that the Second, Third and Fourth Schedule to the Special Marriage Act, 1954, to the extent that it restricts marriages only between a bridegroom and a bride, is unconstitutional and void;iii) declare that any provision or words or phrases in Special Marriage Act, 1954, to the extent it excludes or implies an intention to not recognize or solemnize or register marriage between homosexual couples, is unconstitutional and void;iv) declare that the homosexual couples are entitled to solemnize and register their marriage under the Special Marriage Act, 1954;A direction to the state authorities to process the notice given by the petitioners under Section 5 of the Act to register their marriage has also been sought for.[Read the petition]