A gay couple from Kerala has moved the Kerala High Court seeking legalisation of same-sex marriages. In their petition, Kochi natives Nikesh Usha Pushkaran and Sonu MS, who got married in July 2018, have challenged provisions of the Special Marriage Act, 1954, stating that the provisions violate the fundamental rights of same-sex couples who wish to get married and are thus illegal and unconstitutional.
In their petition, the couple has stated that though the text of the Act does not exclude same sex unions from its ambit expressly, Section 4 and Schedules 2-4 to the Act carry a heterosexual undertone in their language as it shows marriage as an affair between a male and a female or between bride and bridegroom. The format of notice of intended marriage, declarations to be made by the parties to the marriage and the certificate of marriage – all carry heterosexual nomenclature, their petition states. Section 4 of the Act lists the conditions relating to solemnisation of special marriage and specifies male and female in the conditions.
“The institution of marriage affords certain rights and privileges to the persons in matrimony in the society and due to the aforesaid exclusion, the homosexual couples like the petitioners are denied an opportunity to enjoy similar rights and privileges. Being married carries along with it the right to maintenance, right of inheritance, a right to own joint bank accounts, lockers; nominate each other as a nominee in insurance, pension, gratuity papers etc. All these are unavailable to the Petitioners due to their exclusion from the institution of marriage, making the said exclusion more discriminatory,” the petition reads.
This exclusion, the petitioners have said, amounts to discrimination and thus is illegal and unconstitutional to that extent. Petitioners have submitted that the impugned provisions, to the extent that it portrays a heterosexual undertone, must be held unconstitutional and thus be struck or read down to that extent of illegality.
“The petitioners’ right to expression of love in the form that they aspire to conduct will be meaningless if their marital union is not recognised by law. Expression of love, growth of one’s personality within a relationship and development of an identity of a union will be incomplete if the law refuses to recognize same-sex marriages and thereby it affects the Article 19(1) rights of the petitioners guaranteed by Article 19(1)(a) of the Constitution of India,” the petition adds.
The couple has also stated that any law that fails to protect a person’s self-determination of sexual identity and treat that identity with dignity disrespects individual choice and thus is “irrational, arbitrary, violative of Article 14 of the Constitution of India.
The couple has asked the High Court to declare that same-sex couples are entitled to solemnise and register their marriage under the Special Marriage Act, 1954 and to register their marriage and issue a certificate of marriage within the time limits prescribed by the Act of 1954.