SSL MULTI MOOT COURT COMPETITION – FEB’19
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
Writ Petition (Criminal) No
/2018
Section 377
Under the Indian Penal Code, 1860,
Article 21 & 19 (1) (a)
Under the Constitution of India, 1952
&
Writ Petition
Under Article 32 of the Constitution of India, 1952
In the matter of:
Rainbow
…..
(Petitioners)
Versus
Union of India
…..
(Respondents)
UPON SUBMISSION TO THE HONORABLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF THE HONORABLE SUPREME COURT OF INDIA
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
TABLE OF CONTENTS
TABLE OF CONTENTS..............................................................................................................
LIST OFABBREVIATIONS......................................................................................................
INDEX OFAUTHORITIES.......................................................................................................
STATEMENT OF JURISDICTION........................................................................................
STATEMENT OF FACTS....................................................................................................
ISSUES PRESENTED................................................................................................................
SUMMARY OF ARGUMENTS..................................................................................................
ARGUMENTS ADVANCED.......................................................................................................
ISSUE 1:
WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS
MAINTAIABLE BEFORE THIS HON’BLE COURT?
ISSUE 2: THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY
IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC.
ISSUE 3: WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE
AMENDED?
PRAYER.......................................................................................................................................
MEMORANDUM ON BEHALF OF PETITIONER
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LIST OF ABBREVIATIONS
A.I.R
All India Reporters
Art.
Article
Ed.
Edition
Hon’ble
Honorable
Ors.
SC
SCC
Others
Supreme Court
Supreme Court Cases
Sr.
Senior
&
And
U.O.I
Union of India
v. /vs.
Versus
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
INDEX OF AUTHORITIES
CASES
1. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, Civil Appeal No.10972 of
2013
2. Navtej Singh Johar vs Union Of India Ministry Of Law, Writ Petition (Criminal) No. 76 of 2016
3. Nimeshbhai Bharatbhai Desai vs State Of Gujarat, R/CR.MA/26957/2017
4. Naz Foundation vs Government Of Nct Of Delhi, WP(C) No.7455/2001
5. Justice K.S. Puttuswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012
6. Joseph Shine vs Union of India, Writ Petition (Criminal) No. 194 of 2016
7. Moonshee Buzloor Ruheem v. Shumsoonissa Begum, Moo Ind App 551 (609)
8. Bipin Chander Vs Prabhavati, AIR 1957 SC 176 : 1956 SCR 838
9. Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, 1983 CriLJ 632, 1982 (1) SCALE
803, (1982) 3 SCC 9
10. Jagmohan Singh v. State of U.P, 1973 AIR 947, 1973 SCR (2) 541
11. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others, Appeal (civil) 49374940 of 1998
12. Kesavananda Bharati v. Union of India, (1973) 4 SCC 225
13. Sakshi v. Union of India and others, AIR 2004 SC 3566, 2004 (2) ALD Cri 504
14. K.A. Abbas v. Union of India and another, 1971 AIR 481, 1971 SCR (2) 446
15. Rt. Rev. Msgr. Mark Netto v. State of Kerala and other, 1979 AIR 83, 1979 SCR (1) 609.
16. Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al, 135 S. Ct.
2584; 192 L. Ed. 2d 609
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
17. R (Shanker) v GMC, 1962 AIR 78, 1962 SCR (2) 720
18. Savitaben Somabhai Bhatiya v State of Gujarat and Others, Appeal (crl.) 399 of 2005
19. Mohd Ahmed Khan v Shah Bano Begum and others, 1985 (1) SCALE 767, 1985 (3) SCR
844, 1985 (2) SCC 556, AIR 1985 SC 945
20. Chaturbhuj v Sita Bai, Appeal (crl.) 1627 of 2007
21. Nanak Cliand V. Chandra Kishore, AIR 1970 SC, 446.
22. Munabai V. Anant Rao, AIR 1988 SC 644.
23. Bhagwan Dutt V. Kamal Devi, AIR 1975 SC 85.
BOOKS, TREATISES&DIGESTS
•
D.D. BASU, COMMENTRY ON THE CONSTITUTION OF INDIA, WADHWA, INDIA, 2007, 8TH
EDITION, VOLUME I AND II
•
D.D. BASU, CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 8TH EDITION
•
D.D. BASU, SHORTER CONSTITUTION OF INDIA, LEXIS NEXIS, INDIA, 2009, 14TH EDITION
•
H.M. SEERVAI, CONSTITUTION LAW OF INDIA, UNIVERSAL PUBLICATIONS, INDIA, 2004,
4TH EDITION, I,II AND III
•
V.N. SHUKLA, CONSTITUTION LAW OF INDIA, EASTERN BOOK COMPANY, INDIA, 2008,
11TH EDITION
•
M.P. JAIN, INDIA CONSTITUTIONAL LAW, LEXIS NEXIS, INDIA, 6 TH EDITION
•
P.M. BAKSHI, THE CONSTITUTION OF INDIA, UNIVERSAL LAW PUBLISHING COMPANY,
INDIA, 2011, 11TH EDITION
DR.J.N.PANDEY, THE CONSTITUTIONAL LAW OF INDIA, CENTRAL LAW AGENCY, INDIA,
2012, 49TH EDITION
•
•
RATANLAL & DHIRAJLAL, REVISED BY JUSTICE K.T. THOMAS & M.A. RASHID ,THE
INDIAN PENAL CODE, 34TH EDITION, REPRINT AUGUST 2015.
•
K.D.GAUR, WITH A FOREWORD BY JUSTICE P.V. REDDI, COMMENTARY ON THE INDIAN
PENAL CODE, 34TH EDITION, 2015.
MEMORANDUM ON BEHALF OF PETITIONER
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WEBSITES
•
www.lexisnexisacademic.com
•
www.manupatra.com
•
www.legalindia.com
•
www.indlaw.com
•
www.constitution.org
•
www.planningcommission.nic.in
MEMORANDUM ON BEHALF OF PETITIONER
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STATEMENT OF JURISDICTION
THE PETITIONERS HAVE APPROACHED THIS HON’BLE SUPREME COURT OF INDIA UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA. THE PETITIONERS HUMBLY SUBMIT THIS
JURISDICTION.
MEMORANDUM ON BEHALF OF PETITIONER
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STATEMNET OF FACTS
➢ Mr. X and Mr. Y are citizens of India. Both had gone to Ireland to pursue higher
education and subsequently started working in Ireland. They were already into a
relationship and eventually got married according to the Irish Laws during their
stay.
➢ They were in marital relationship for two years and were residing in Ireland. On 15th
September 2017 they relocated to India. They both started staying in a apartment in
Bandra, Mumbai.
th
➢ On 10 September 2018, Mr. X left the apartment and went on to stay separately without
informing Mr. Y. Despite several attempts of contact from Y, Mr. X did not respond.
With no other option left Mr. Y tried filing a case but was not allowed to do it.
➢ Aggrieved by this Mr. Y approached an NGO named RAINBOW who works
and
fights for the rights of LGBTQI [Lesbian, Gay, Bisexual, Transgender, Queer, and
Intersex] section of society in India.
➢ Rainbow after consultation with their panel of legal experts who through their research
on the recent landmark Judgment dated 6th Sep, 2018 on decriminalization of sec.377 of
Indian Penal Code, where the Supreme Court found that Section 377 violates the right
of members of the LGBTQI community to dignity, identity, and privacy, all
covered under Article 21 & 19 (1) (a).
➢ Due to plethora of issues related with recognition of same sex marriage like Domestic
Violence, Cruelty, and Maintenance, Raging modesty.
➢ RAINBOW filed a writ Petition against Union of India in the Hon. Supreme
Court seeking the recognition & Validity of same sex marriage & gender Equality.
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ISSUES
I. WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS
MAINTAIABLE BEFORE THIS HON’BLE COURT?
II. THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY
IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC.
III. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE
AMENDED?
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SUMMARY OF ARGUMENTS
I.
WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS
MAINTAIABLE BEFORE THIS HON’BLE COURT?
It is humbly submitted by the petitioner before this Hon’ble court that disallowing Mr. Y to file a case is
against the law of the land since the petitioner has the required locus standi before The Hon’ble Supreme
court to file the instant petition being a Nongovernmental Organisation. Since there is an
involvement of various fundamental settled principles like individual dignity and decisional autonomy
inherent in the personality of a person, a great discomfort to gender identity, destruction of the right
to privacy which is a pivotal facet of Article 21 of the Constitution and right to form associations
enshrined in Article 19(1)(a) of the Constitution. This writ petition challenging the constitutional validity
and recognition of same sex marriage based on gender equality, is found to have a settled position in law to
be maintainable
based
on
the
Fundamental Rights
violation
and
the
Matter
of
National
Importance.
II. THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER EQUALITY
IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC.
It is humbly submitted before this Hon’ble court that the instant petition suffers from the vice of unreasonable
classification and is arbitrary in the way it unfairly targets the homosexuals or gay community thus
infringing their right under article 14. It also unreasonably and unjustly infringes upon the right of privacy
which is sine qua non to article 21. The expanded scope and ambit of the right to life and personal
liberty enshrined in Article 21 sowed the seed for future development of the law enlarging this most
fundamental of the fundamental rights. Thus, different sexual expressions or orientations automatically
come within the ambit of expanded right to life and personal liberty.
III. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO BE
AMENDED?
It is submitted on behalf of the petitioners that In India, citizens have a choice to be married under their
various personal laws, or a common law of civil marriage. While none of the acts have explicitly defined
marriage as a union between a man and a woman, it has been interpreted and understood to mean that a
marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’
imply that the laws are valid only for couples of the opposite sex. The LGBTQ as a citizen of India, have all
Rights to Marry, to claim maintenance and a right to adopt.
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ARGUMENTS ADVANCED
I.
WHETHER THE SAID WRIT PETITION FILED BY THE RAINBOW (NGO) IS
MAINTAIABLE BEFORE THIS HON’BLE COURT?
The petitioners humbly submit that the instant Case is maintainable under Article 32 of the Indian constitution.
This argument is fivefold. Firstly the petitioners have a bona fide interest and hence they have a locus standi.
Secondly, the fundamental rights of the citizens have been violated. 'Thirdly, the cases that impose a rule of
exhaustion of local remedies are not binding upon this Court. Fourthly, there is a constitutional obligation
on this Court to protect fundamental rights. In any case, the alternative remedies are nor equally efficacious.
Fifth, the violation of settled principles of law.
1.1The petitioners have the required locus standi
•
Locus standi is the right of a party to appear and be heard on the question before any tribunal. 1
It means the legal capacity to invoke the jurisdiction of the court. The SC has ruled that to exercise its
jurisdiction under article 32, it is not necessary that the affected persons should personally approach the
court. The court can itself take cognizance of the matter and proceed suo motu or on a petition of may
public spirited individual body2.
•
In landmark cases3, the SC evolved a new rule vis., any member of the public, acting bona fide
and having sufficient interest can maintain an action for redressal of public wrong or public injury. In
S. P. Gupta v. UOI, the court observed that, “any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of public duty or from
violation of some provisions of the constitution”.
•
However the member of the public should not be a mere busybody or a meddlesome interloper
but one who has sufficient interest in the proceedings. In the instant matter, the petitioners i.e.
RAINBOW is a Non-governmental Organization which works exclusively for the rights of LGBTQ
people. They have sufficient interest and are concerned about the rights and livelihood of LGBTQ
people.
•
Furthermore, even if the petitioner in fact moved to the court in private interest and for the redressal
of his personal grievances, or to seek his personal revenge, court can proceed to enquire the state of
affairs of the subject of the litigation in the interest of justice and in furtherance of justice 4.
If the court finds the question raised to be of substantial public interest, the issue of locus standi
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of the person placing the relevant facts and materials before the
court
becomes
irrelevant 5.
Therefore, locus standi of the petitioners should not be in question.
1.2 Violation of Fundamental Right
•
Sexual orientation is an essential attribute of privacy. Discrimination against an individual
on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”
Equality demands that the sexual orientation of each individual in society must be protected on an
even platform. The right to privacy and the protection of sexual orientation lie at the core of
Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution.
•
The sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual
orientation is not permitted by Article 15. In our view, discrimination on the ground of sexual
orientation is impermissible even on the horizontal application of the right enshrined under Article 15.
•
Article 15 prevents the State from discriminating against any citizen only on the grounds of sex,
religion, race, caste, or place of birth. This provision was previously interpreted to mean that
discrimination, which is not only on the grounds mentioned above, is permitted.
•
It is argued with astuteness that Section 377 has a chilling effect on Article 19(1)(a) of the Constitution
which protects the fundamental right of freedom of expression including that of LGBT persons to
express their sexual identity and orientation, through speech, choice of romantic/sexual
expression
of romantic/sexual desire,
acknowledgment
partner,
of relationships or any other means and
that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of
the Constitution.
•
To buttress the said stance, reliance is placed upon the decision in S. Khushboo v. Kanniammal
and another6 wherein it has been held that law should not be used in such a manner that it has a
chilling effect on the freedom of speech and expression.
•
Since there are violation of fundamental rights i.e Article 14, 15, 19, 21 which is the soul of our
constitution, the instant potion is maintainable before this Hon’ble court.
1.3 There is no requirement for the petitioner to exhaust local remedies
1.3.1.1 The right under article 32 is not subject to the exhaustion of local remedies
The right to approach this Hon’ble court in case of violation of fundamental rights is itself a fundamental right
enshrined in article 32. In Prem chand garg , it was held that this Right is absolute and may not be impaired on
any ground7. Further unlike in article 226, the remedy provided by article 32 is a fundamental right and not
merely the discretionary power of the court8. Moreover this Hon’ble court has on multiple occasions expressly
rejected an argument that called for exhaustion of local remedies 9. Therefore it is submitted that it is not open
to this court to carve out exceptions when there are none in the text. Furthermore judicial orders are
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not amenable to writ jurisdictions under article 3210. Consequently, of a violation of Article 32 takes place
by this Court’s rejection of the instant petition, the petitioners will have absolutely no remedy for
such violation of their fundamental rights. Hence, the petitioner submit that a liberal approach should be
adopted erring on the side of caution, in cases where the courts rejects a petition under Article 32.
1.3.2
The rule of exhaustion of local remedies is not binding on this Hon’ble Court
Admittedly, cases such as Paul Manickaam,11 Kanubhai12 and P.N. Kumar13 require the exhaustion of
local remedies before approaching the court under Article 32.
However, it is Firstly, this self-imposed restraint is merely a rule of convenience and discretion14 and
does not oust the jurisdiction of this court under article 3215 Secondly, these cases are per incuriam as
they were rendered in ignorance of previous decisions by the higher benches of this Hon’ble court that
expressly rejected such rule. Finally, Article 32 (4) specifically provides that this right may not be suspended
except by a constitutional provision16. A rule of self imposed restraint by the judiciary that requires
exhaustion of local remedies constitutes an extra-constitutional partial suspension and
is thereof
unconstitutional.
1.3.3
This Hon’ble court has a constitutional duty to entertain the instant petition
The constitutional obligation of this Hon’ble court as the guarantor of fundamental rights has been
interpreted broadly17 and as one that exists independent of any other remedy that may be available 18. This is
particularly true in cases of grave public importance, such as the rights of LGBTQ People where relief
may not be denied on mere technical grounds. Consequently,
it
is submitted that a refusal to
entertain the instant petition would be inconsistent with the aforesaid obligation.19
1.4 Violations of settled principles of law
•
Article 15 prevents the State from discriminating against any citizen only on the grounds of
sex, religion, race, caste, or place of birth. This provision was previously interpreted to mean that
discrimination, which is not only on the grounds mentioned above, is permitted. In the Navtej Johar
Case20, the Supreme Court moved away from this narrow view and held that any ground of
discrimination, whether direct or indirect, which is founded on a particular understanding of the role of
the sex, constitutes discrimination under Article15. This way, the Supreme Court expanded the
prohibited grounds of discrimination under Article 15 to include sexual orientation, and, therefore,
Section 377 was held to be discriminatory under Article 15.
•
The LGBTQ people cannot get lawfully married nor can claim for the same since there are no laws
pertaining to the same. To bolster the said argument, reliance has been placed upon Francis Coralie
Mullin v. Administrator, Union Territory of Delhi and others 21 and Common Cause (A Registered
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Society) v. Union of India and another22 wherein it was held that the right to life and liberty, as
envisaged under Article 21, is meaningless unless it encompasses within its sphere individual
dignity and right to dignity includes the right to carry such functions and activities as would
constitute the meaningful expression of the human self.
•
The petitioners have also relied upon the view in K.S. Puttaswamy and another v. Union of
India and others23 to advance their argument that sexual orientation is also an essential
attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an
individual is extremely important, for without the enjoyment of these basic and fundamental rights,
individual identity may lose significance, a sense of trepidation may take over and their existence
would be reduced to mere survival. It is further urged that sexual orientation and privacy lie at
the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the
Constitution and in the light of the decision in Puttaswamy (supra), it has become imperative
that Section 377 be struck down. It is contended that the right to privacy has to take within its
ambit and sweep the right of every individual, including LGBTs, to make decisions as per their choice
without the fear that they may be subjected to humiliation or shunned by the society merely because of
a certain choice or manner of living.
•
Considering the above arguments the petitioners contend that disallowing Mr. Y to file a case is not only
against the law but also the violation of fundamental rights since it carries the issue of national
importance.
II.
THERE EXSISTS A VIOLATION OF SAME SEX MARRIAGE AND GENDER
EQUALITY IRRESPECTIVE OF DECRIMINALIZATION OF SEC. 377 OF IPC.
Gender Identity and Sexual orientation
Article 15 was described by the Court as a particular application of the general right to equality under Article
14 in The Naz foundation case26. The Court considered the petitioner’s argument that the reference to ‘sex’ in
Article 15 should be interpreted as including sexual orientation on the basis that discrimination on the grounds
of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred to the Human
Rights Committee’s decision in Toonen v. Australia27 in which the Tasmanian Criminal Code which
MEMORANDUM ON BEHALF OF PETITIONER
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criminalised sexual acts between men, was considered a violation of Article 2 of the International Covenant
on Civil and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation.
The sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation
is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of
rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to
public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the
horizontal application of the right enshrined under Article 15.
Article 15 prevents the State from discriminating against any citizen only on the grounds of sex, religion, race,
caste, or place of birth. This provision was previously interpreted to mean that discrimination, which is not
only on the grounds mentioned above, is permitted. In the Navtej Johar Case28, the Supreme Court moved
away from this narrow view and held that any ground of discrimination, whether direct or indirect, which
is founded on a particular understanding of the role of the sex, constitutes discrimination under Article 15.
This way, the Supreme Court expanded the prohibited grounds of discrimination under Article 15 to include
sexual orientation, and, therefore, Section 377 was held to be discriminatory under Article 15.
Having canvassed with vehemence that sexual orientation is an important facet of the right to privacy which
has been raised to the pedestal of a cherished right, the learned counsel for the petitioners have vigorously
propounded that sexual autonomy and the right to choose a partner of one ‘s choice is an inherent aspect of the
right to life and right to autonomy. In furtherance of the said view, they have relied upon the authorities in
Shakti Vahini v. Union of India and others29 and Shafin Jahan v. Asokan K.M30. wherein it has been clearly
recognized that an individual ‘s exercise of choice in choosing a partner is a feature of dignity and, therefore,
it is protected under Articles 19 and 21 of the Constitution.
Learned counsel for the petitioners submits before this Hon’ble court that sexual orientation, being an innate
facet of individual identity, is protected under the right to dignity. To bolster the said argument, reliance has
been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others31 and
Common Cause (A Registered Society) v. Union of India and another32 wherein it was held that the right to
life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere
individual dignity and right to dignity includes the right to carry such functions and activities as would
constitute the meaningful expression of the human self.
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It is the case of the petitioners that Section 377 violates Article 15 of the Constitution since there is
discrimination inherent in it based on the sex of a person‘s sexual partner as under Section 376(c) to (e), a
person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same
acts if done with a same-sex partner are criminalised even if the partner consents. The petitioners have drawn
the attention of this Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had
observed that sex occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section
377 is also violative of Article 15 of the Constitution on this count.
III. WHETHER LAWS RELATING TO THE INSTITUTION OF MARRIAGE NEED TO
BE AMENDED?
It is submitted on behalf of the petitioners that In India, citizens have a choice to be married under their various
personal laws, or a common law of civil marriage. While none of the acts have explicitly defined marriage as a
union between a man and a woman, it has been interpreted and understood to mean that a marriage is always
between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are
valid only for couples of the opposite sex. The LGBTQ as a citizen of India, have all Rights to Marry, To claim
maintenance and a right to adopt
2.1 Right to marry
•
Every person has the right to live their life the way want, and decide what gives them
happiness, and what does not. Article 21 of the Constitution of India entitles every citizen of with the
right to life and personal liberty. This right also includes the right to privacy and dignity. Choosing
one’s life partner is a private subject, and it is a choice that an adult is entitled to make for
himself.
•
The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists. Section 5 of this
Act says that a marriage may be solemnised between any two Hindus, if the bridegroom has
completed the age of twenty- one years and the bride the age of eighteen years at the time of the
marriage. Also, Section 60 of the Indian Christian Marriage Act, 1872, lays down that the age of
man intending to be married shall not be under twenty- one years, and the age of woman intending to be
married shall not be under eighteen years. Thus, both
these
legislations
have
heterosexist
underpinnings. In the case of Muslims, they are governed by Islamic Law itself, rather than any
codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of
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marriage is to legalise sexual relations between a man and a woman, for the procreation of children
(however, this is not a universal view, with other competing views existing about homosexuality in
Islam).
•
The Special Marriage Act, 1954, allows for marriages between individuals from different religions
and castes. While no separate definition of marriage is given, the Act also has heterosexist
underpinnings, such as the definition of a ‘prohibited relationship’ which only considers a relationship
between a man and a woman within certain degrees of familial relations.
•
Inheritance among Hindus is governed by the Hindu Succession Act, 1956. Section 8 of that Act read
with the Schedule regards a widow as an heir of a man dying intestate (ie, without leaving a will), and
Section 15 regards a husband as an heir of a dead woman. The words 'widow' and 'husband' obviously
refer to a man married to a woman, and not a same sex relationship.
•
The right to marry is a part of right to life under Article 21 of Indian Constitution. Right to marriage is
also stated under Human Rights Charter within the meaning of right to start a family. The right to
marry is a universal right and it is available to everyone irrespective of their gender. Various courts
across the country have also interpreted right to marry as an integral part of right to life under
Article 21.
•
A forced marriage is illegal in different personal laws on marriage in India, with the right to marry
recognised under the Hindu laws as well as Muslim laws. Other laws that lay down a person's right to
marry in India are:
✓ The Prohibition of Child Marriage Act, 2006
✓ The Guardians and Wards Act, 1890
✓ The Majority Act, 1875
✓ The Family Courts Act, 1984
✓ The Protection of Women from Domestic Violence Act, 2005
MEMORANDUM ON BEHALF OF PETITIONER
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•
As Right to marry is a part of the widest nature of article 21 of the constitution and the
Personal laws of India also never denied the aspect of same sex marriage then the right to marry
applicable to LGBTQ as well which is humbly submitted by the counsels for the petitioner.
2.2 Religious Standings of Same sex marriages
Hinduism
There is enough Hindu literature available that speaks volumes about the stand of Hinduism on
homosexuality, and as an extension on same sex marriages. Homosexuality has an ancient history in India.
Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts
between women as revelations of a feminine world where sexuality was based on pleasure and fertility. The
description of homosexual acts in the Kamasutra, sculptures of the temple at Khajuraho, the character of
‘Sikhandi’ in Mahabharata, evidences of sodomy in the Tantric rituals are some historical evidences of
same-sex relationships. However, these experiences started losing their significance with the advent ofVedic
Brahmanism and, later on, of British Colonialism. The Manusmriti provides harsh punishments for females
having sexual relations with a girl, proving the existence of such relations during the period. However,
both
sexual
systems
coexisted,
despite fluctuations
in
relative
repression
and
freedom,
until
British Colonialism when the destruction of images of homosexual expression and sexual expression in
general became more systematic and blatant.
Muslim
Islamic Shari’ah law is extracted from both the Qur’an and Muhammad’s Sunnah Homosexuality under
this law, is not only a sin, but a punishable crime against God.In the case of homosexuality, how it is
dealt with differs between the four mainline schools of Sunni jurisprudence today, but what they all agree
upon is that homosexuality is worthy of a severe penalty. Muhammad himself had stated, “If you find
anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done.” He even
went so far as to condemn the “appearance” of homosexuality, when he cursed effeminate men and masculine
women and ordered his followers to “Turn them out of your houses.” This ruling on homosexuals was
naturally adopted by his later successors. Even by moderate Muslims homosexuality is seen as something
that is vile and unacceptable.
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
Christianity
There has been a great debate going on in the Christian world regarding the position of homosexuality. One
line condemns the idea as a whole, whereas the other line says homosexuals should be accepted so
that they can find a higher calling in God and change their ways. The split in thought has occurred
after
modern
Western
nations
have
started legalising
homosexuality.
However,
traditionally,
homosexuality has been condemned by Christianity.
2.3 Right to maintenance
The concept of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal
Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3)
reinforced by Article 39 of the Constitution of India, 1950 (the 'Constitution'). Under Indian law, the
term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to
the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man
to maintain his wife, children and parents, when they are unable to maintain themselves 24. The object
of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and
children. Maintenance can be claimed under the respective personal laws of people following different faiths
and proceedings under such personal laws are civil in nature. Proceedings initiated under Section 125
however, are criminal proceedings and, unlike the personal laws, are of a summary nature and apply to
everyone regardless of caste, creed or religion.25 The object of such proceedings however, is not to punish a
person for his past neglect. The said provision has been enacted to prevent vagrancy by compelling those who
can provide support to those who are unable to support themselves and have a moral claim to support. 26
Maintenance can be claimed either at the interim stage, ie, during the pendency of proceedings, or the
final stage.
The provisions of Section 125, Cr. P.C., 1973 apply and are to be enforced irrespective of whatever may be
the personal law by which the persons in India are governed 27. Simultaneously, it must be
understood that personal laws of the parties concerned, Hindus, Muslims, Christians are to be duly cared of as
the same are important to decide the validity of the marriage tie, if any, (existent or not) and so cannot be
completely set aside from due consideration.
The provisions under the Code of Criminal Procedure, 1973 binds a person to perform the moral obligation
which he is duty bound to the society in respect of his wife, children and parents. The duty is by far legal and
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
binding29 upon the person By way of a simple, speedy and effective limited relief, the provision included
in chapter IX of Cr. P.C., 1973 tries to prevent the neglected wife, parent and children (minor) from utter
penury and destruction.
Section 125, Cr. P.C., 1973 provides a speedy remedy against starvation and civil destruction. It
is not akin to civil liability of a husband. It sub-serves a summary procedure without much complexities. It
gives effect to the basic fundamental duty of a male person to maintain his wife, children and aged inform
parents having no income of themselves. The basic idea behind the position of maintenance under Section
125, Cr. P.C., 1973 is that no wife, minor children, old parents should not devoid of and succumb to
utter pressure of “wants” so that they may have to be tempted to take recourse to crimes etc. Provision under
Section 125, Cr. P.C., 1973 authorises a Magistrate of the First Class to take summary action for prevention of
poverty.
MEMORANDUM ON BEHALF OF PETITIONER
SSL MULTI MOOT COURT COMPETITION – FEB’19
PRAYER
In the light of arguments and authorities cited, the Respondents humbly pray that the Hon’ble Supreme
Court may be pleased
➢ to adjudge and declare that The writ petition filed by the NGO- Rainbow is maintainable
➢ to amend laws relating to marriage
➢ And entertain such other petition in the interest of justice.
Pass any other order the Hon’ble court deems fit in the interest of equity justice
and good conscience.
And for this, the Petitioners as in duty bound, shall humbly pray.
MEMORANDUM ON BEHALF OF PETITIONER