RESPONDENT’S MEMORIAL
IN THE HON’BLE SUPREME COURT OF SIND
WRIT PETITION NO.:
.
In the matter of
MUSKAN, NON-GOVERNMENTAL ORGANIZATION
FOR LGBTQI (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex) COMMUNITY
(PETITIONER)
VERSES
UNION OF SIND
(RESPONDENT)
ON SUBMISSION TO
THE HONOURABLE SUPREME COURT OF SIND ON
BEHALF OF THE –PETITIONER
COUNCIL FOR - PETITIONER
MEMORIAL ON BEHALF OF PETITIONER
Page 1
TABLE OF CONTENTS
SR.NO
_
PARTICULAR
PAGE NO.
1.
LIST OF ABBRIEVIATION
05
2.
INDEX OF AUTHORITIES05
06
3.
CASES CITED
07
4.
BOOKS REFERRED
08
5.
LEGAL DATABASE
09
6.
STATEMENT OF JURISDICTION
10
7.
STATEMENT OF FACTS
11
8.
STATEMENT OF ISSUES
12
9.
SUMMARY OF ARGUMENTS
13
10.
ARGUMENT IN ADVANCE
14 to 21
11.
PRAYER
22
MEMORIAL ON BEHALF OF PETITIONER
Page 2
LIST OF ABBRIEVIATIONS
MEMORIAL ON BEHALF OF PETITIONER
Page 3
MEMORIAL ON BEHALF OF PETITIONER
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Abbreviation
Actual Term
Art.
Article
AIR
All India Reporter
SC
Supreme Court
SCC
Supreme Court Cases
V.
Versus
Ors
Others
Hon’ble
Honorable
Para
Paragraph
Ed
Edition
Etc
Etcetera
UOI
Union of India
P.
Page
S.C.R.
Supreme Court Report
MEMORIAL ON BEHALF OF PETITIONER
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INDEX OF AUTHORITIES
Statutes Referred :The Constitution of Sind
Special Marriage Act 1954
Sind Penal Code 1860
BOOKS REFERRED
The Constitution of, Sind 1950 Prof M.P. Jain
Bare Act (The Constitution of Sind)
Indian Penal Code
Transgender Person Protection of Rights Bill, 2019
Universal Declaration of human Rights, 1948
MEMORIAL ON BEHALF OF PETITIONER
Page 6
CASES CITED
Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018
Abhijeet Iyer Mitra vs. Union of India.
Lata Singh vs. State of U.P. (2006)
Shakti Vahini vs. Union of India (2018),
Harnandez v. Robles court of appeal of New York 2006
Jackson v. Abercrombie United state 2012
Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December, 2013
[Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC 608, Para 6 of
SCC].”
Indra Sawhney v. Union of India, (1992) Supp. 3 SCC 217….
United States
Canada
United Kingdom
MEMORIAL ON BEHALF OF PETITIONER
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JURISDICTION
To,
The Hon’ble Chief Justice of Sind and his Lordship Companion Judges of the Supreme Court
of Sind. The Humble Written Submission of PETITIONER above named.
MEMORIAL ON BEHALF OF PETITIONER
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LEGAL DATABASE
Websites:-
1. www.manupatra.co.in
2. www.legalservicesofindia.com
3. www.indiakanoon.org
4. www.vakilno1.com
5. www.lawkhoj.com
6. www.legalindia.com
7. www.scconline.com
MEMORIAL ON BEHALF OF PETITIONER
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STATEMENT OF JURISDICTION
The Petitioner has the Honour to submit before the Hon’ble Supreme Court of Sind under
Art. 32, of Constitution The case filed by MUSKAN, NON-GOVERNMENTAL
ORGANIZATION FOR LGBTQI
The Petitioner oppose this jurisdiction as the Hon’ble court has no jurisdiction to decide this
matter.
32.Remedies for enforcement of rights conferred by this part
(1)
The right to move the Supreme Court by appropriate proceeding for the enforcement of
the right conferred by this part is guaranteed.
(2)
The Supreme Court shall have power to issue directions or orders or writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of
(3)
Without prejudice to the powers conferred on the on the Supreme Court by clauses (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2)
(4)
The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
The petitioner cannot file a petition under art. 32 as there is no infringement of fundamental
right& the respondent oppose this point of jurisdiction itself.
MEMORIAL ON BEHALF OF PETITIONER
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10
STATEMENT OF FACTS
1. Mr. Mahesh and Mr. Yogesh are citizens of Sind. Both had gone to Finland to pursue
higher education and subsequently started working in Finland.
2. They were already into a relationship and eventually got married according to the laws
of Finland during their stay in Finland. They were in marital relationship for two years
and were residing in Finland.
3. On 27th January, 2019 they shifted to Sind and both started staying in an apartment at
Sandra, Trombay.
4. On 10th September, 2019, Mr. Mahesh left the apartment and went to stay separately
without informing Mr. Yogesh Despite several attempts of contact from Mr. Yogesh,
Mr. Mahesh did not respond. With no other option left Mr. Yogesh tried reporting to
the police but was not entertained. Aggrieved by this Mr. Yogesh approached an NGO
named Muskan who works and fights for the rights of LGBTQI (Lesbian, Gay,
Bisexual, Transgender, Queer, Intersex) section of society in Sind.
5. Due to plethora of issues related with recognition of same sex marriage like Domestic
Violence, Cruelty, and Maintenance etc. and for protection of the rights of members of
the LGBTQI community Muskan filed a Writ Petition against Union of Sind in the
Supreme Court of Sind seeking the recognition & validity of same sex marriage &
gender equality
MEMORIAL ON BEHALF OF PETITIONER
Page 10
STATEMENT OF ISSUES
ISSUE: I
Whether the LGBTQI community are entitled to the Fundamental Rights under the
Constitution of Sind
ISSUE: II
Whether same sex marriage be decriminalized in state of Sind
ISSUE: III
Whether legalizing same sex marriage corrupt the public morality of the state of Sind.
MEMORIAL ON BEHALF OF PETITIONER
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SUMMARY ARGUMENTS
ISSUE: I
Whether the LGBTQI community are entitled to the Fundamental Rights under the
Constitution of Sind
Yes, The LGBTQI community are entitled the fundamental rights under the Constitution
of Sind.
The Supreme Court has repeatedly recognized the right to marry an individual of one’s
own choice as being part of one’s Fundamental Rights under Article 21.
ISSUE: II
Whether same sex marriage be decriminalized in state of Sind
No, same sex marriage be decriminalized,
As the Delhi High Court deliberates upon the question of validity of homosexual
marriages in Indian law, MUSKAN explains, by looking at the Indian judiciary’s vast
jurisprudence on the matter, that the denial of the right to marry to homosexual people
would be in abrogation of their fundamental rights under Articles 14, 15, 19 and 21 of the
Constitution.
MEMORIAL ON BEHALF OF PETITIONER
Page 12
ISSUE: III
Whether legalizing same sex marriage corrupt the public morality of the state of Sind.
No, If the legalizing same sex marriage cannot corrupt the public morality of the state of
Sind.
Let us try to understand this without getting religion-specific since every religion has a
particular way of looking at the family and they invariably sanction only heterosexual
relationships. The purpose of marriage is not sex alone but the procreation of children
who would become healthy citizens. If sex was the purpose, then society has many outlets,
including the one provided by the amended Section 377.
MEMORIAL ON BEHALF OF PETITIONER
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ARGUMENTS ADVANCED
The Centre has argued that marriage under the Special Marriage Act, 1954 is only permissible
between a biological man and a biological woman.
As the Delhi High Court deliberates upon the question of validity of homosexual marriages in
Indian law, Muskan explains, by looking at the Indian judiciary’s vast jurisprudence on the
matter, that the denial of the right to marry to homosexual people would be in abrogation of
their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.
IN 2018, the Supreme Court decriminalized homosexuality as an offence vide its
pronouncements in Navtej Singh Johar vs. Union of India (2018). The Court read down
provisions of Section 377 (unnatural offences) of the Indian Penal Code and thus legitimized
same-sex relationships, but on one crucial aspect, the judgment remained silent.
The question of the validity of homosexual marriages is currently being considered by the Delhi
High Court in the matter of Abhijeet Iyer Mitra vs. Union of India. The Centre has argued that
marriage under the Special Marriage Act, 1954 is only permissible between a biological man
and a biological woman. It further contended that there is a “legitimate State interest” in
limiting recognition of marriage to persons of the opposite sex only as the concept of marriage,
according to the Centre, is not solely relegated to the domain of privacy of an individual.
However, in case the right to marry homosexual individuals is refused, it would have numerous
repercussions on their fundamental rights.
RIGHT TO MARRY
Even though the Right to Marry the person of one’s choice is not categorically mentioned in
the Constitution, the Indian Judiciary has recognized and upheld this right through various
judgments. One such instance has been the Supreme Court’s judgment in Lata Singh vs. State
of U.P. (2006). In that case, the woman had married a man belonging to a different caste than
her. The Supreme Court held that since the woman was a major (above 18 years of age), she
had the freedom to choose whomever she wanted to marry.
The Supreme Court has repeatedly recognized the right to marry an individual of one’s own
choice as being part of one’s Fundamental Rights under Article 21.
MEMORIAL ON BEHALF OF PETITIONER
Page 14
Indian Woman says gang-raped on orders of Village Court published in Business & Financial
News dated 23.01.2014 (2014) was another landmark judgment in which the Supreme Court
included the “freedom of choice in marriage” within Article 21 of the Indian Constitution. In
this case, the victim was a tribal woman who had married a man from a different community.
The incident took a horrifying course when a village forum for dispute resolution called Salishi
Sabha decided to punish her by ordering her to pay a hefty sum of Rs. 50,000 as a fine, when
she could not, the Sabha ordered men to gang-rape her. The Court held the involved men liable
for the offence of rape.
As the Delhi High Court deliberates upon the question of validity of homosexual marriages in
Indian law, MUSKAN explains, by looking at the Indian judiciary’s vast jurisprudence on the
matter, that the denial of the right to marry to homosexual people would be in abrogation of
their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.
IN 2018, the Supreme Court decriminalized homosexuality as an offence vide its
pronouncements in Navtej Singh Johar vs. Union of India (2018). The Court read down
provisions of Section 377 (unnatural offences) of the Indian Penal Code and thus legitimized
same-sex relationships, but on one crucial aspect, the judgment remained silent.
The question of the validity of homosexual marriages is currently being considered by the Delhi
High Court in the matter of Abhijeet Iyer Mitra vs. Union of India. The Centre has argued that
marriage under the Special Marriage Act, 1954 is only permissible between a biological man
and a biological woman. It further contended that there is a “legitimate State interest” in
limiting recognition of marriage to persons of the opposite sex only as the concept of marriage,
according to the Centre, is not solely relegated to the domain of privacy of an individual.
However, in case the right to marry homosexual individuals is refused, it would have numerous
repercussions on their fundamental rights.
RIGHT TO MARRY
Even though the Right to Marry the person of one’s choice is not categorically mentioned in
the Constitution, the Indian Judiciary has recognized and upheld this right through various
judgments. One such instance has been the Supreme Court’s judgment in Lata Singh vs. State
of U.P. (2006). In that case, the woman had married a man belonging to a different caste than
her. The Supreme Court held that since the woman was a major (above 18 years of age), she
had the freedom to choose whomever she wanted to marry.
MEMORIAL ON BEHALF OF PETITIONER
Page 15
THE SUPREME COURT has repeatedly recognized the right to marry an
individual of one’s own choice as being part of one’s Fundamental Rights under Article 21.
In Re: Indian Woman says gang-raped on orders of Village Court published in Business &
Financial News dated 23.01.2014 (2014) was another landmark judgment in which the
Supreme Court included the “freedom of choice in marriage” within Article 21 of the Indian
Constitution. In this case, the victim was a tribal woman who had married a man from a
different community. The incident took a horrifying course when a village forum for dispute
resolution called Salishi Sabha decided to punish her by ordering her to pay a hefty sum of Rs.
50,000 as a fine, when she could not, the Sabha ordered men to gang-rape her. The Court held
the involved men liable for the offence of rape.
In Shakti Vahini vs. Union of India (2018), the Supreme Court categorically held that the
decision of two adult individuals to marry each other is an example of their exercising the
freedom given to them under Articles 19 and Article 21 of the Constitution. In Shafin Jahan vs.
K.M. Asokan (2018) (popularly known as the “Hadiya case”), a Hindu girl had converted to
Islam without any undue influence or coercion, and later married a Muslim man. Her father
filed a suit for annulment of their marriage. The Supreme Court restored their marriage, which
had been annulled by the lower court, and recognized that she had the choice of marrying the
person of her choice. This judgment relied upon Justice K.S. Puttaswamy (Retd) vs. Union of
India (2018), which recognized the right of an individual to marry an individual of one’s choice
as a part of Article 21 of the Indian Constitution. Justice Chandrachud, in the Puttuswamy
judgement, had observed that the judiciary should go beyond sexual orientation and discuss the
wider topic of sexuality which includes cohabitation and marriage.
CONSTITUTIONAL VALIDITY
Article 14 states that “The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.” Article 15 prohibits discrimination on
five grounds, namely “religion, race, caste, sex, or place of birth.” Gender is not mentioned
explicitly as one of the grounds.
MEMORIAL ON BEHALF OF PETITIONER
Page 16
Being cis-gendered is not a mandatory condition that needs to be fulfilled in
order to qualify as a “bride” under the Hindu Marriage Act.
As the Delhi High Court deliberates upon the question of validity of homosexual marriages in
Indian law, MUSKAN NGO explains, by looking at the Indian judiciary’s vast jurisprudence
on the matter, that the denial of the right to marry to homosexual people would be in abrogation
of their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.
IN 2018, the Supreme Court decriminalized homosexuality as an offence vide its
pronouncements in Navtej Singh Johar vs. Union of India (2018). The Court read down
provisions of Section 377 (unnatural offences) of the Indian Penal Code and thus legitimized
same-sex relationships, but on one crucial aspect, the judgment remained silent.
The question of the validity of homosexual marriages is currently being considered by the Delhi
High Court in the matter of Abhijeet Iyer Mitra vs. Union of India. The Centre has argued that
marriage under the Special Marriage Act, 1954 is only permissible between a biological man
and a biological woman. It further contended that there is a “legitimate State interest” in
limiting recognition of marriage to persons of the opposite sex only as the concept of marriage,
according to the Centre, is not solely relegated to the domain of privacy of an individual.
However, in case the right to marry homosexual individuals is refused, it would have numerous
repercussions on their fundamental rights.
RIGHT TO MARRY
Even though the Right to Marry the person of one’s choice is not categorically mentioned in
the Constitution, the Indian Judiciary has recognized and upheld this right through various
judgments. One such instance has been the Supreme Court’s judgment in Lata Singh vs. State
of U.P. (2006). In that case, the woman had married a man belonging to a different caste than
her. The Supreme Court held that since the woman was a major (above 18 years of age), she
had the freedom to choose whomever she wanted to marry.
The Supreme Court has repeatedly recognized the right to marry an individual
of one’s own choice as being part of one’s Fundamental Rights under Article 21.
MEMORIAL ON BEHALF OF PETITIONER
Page 17
In Re: Indian Woman says gang-raped on orders of Village Court published in Business &
Financial News dated 23.01.2014 (2014) was another landmark judgment in which the
Supreme Court included the “freedom of choice in marriage” within Article 21 of the Indian
Constitution. In this case, the victim was a tribal woman who had married a man from a
different community. The incident took a horrifying course when a village forum for dispute
resolution called Salishi Sabha decided to punish her by ordering her to pay a hefty sum of Rs.
50,000 as a fine, when she could not, the Sabha ordered men to gang-rape her. The Court held
the involved men liable for the offence of rape.
In Shakti Vahini vs. Union of India (2018), the Supreme Court categorically held that the
decision of two adult individuals to marry each other is an example of their exercising the
freedom given to them under Articles 19 and Article 21 of the Constitution. In Shafin Jahan vs.
K.M. Asokan (2018) (popularly known as the “Hadiya case”), a Hindu girl had converted to
Islam without any undue influence or coercion, and later married a Muslim man. Her father
filed a suit for annulment of their marriage. The Supreme Court restored their marriage, which
had been annulled by the lower court, and recognized that she had the choice
of marrying the person of her choice. This judgment relied upon Justice K.S. Puttaswamy
(Retd) vs. Union of India (2018), which recognized the right of an individual to marry an
individual of one’s choice as a part of Article 21 of the Indian Constitution. Justice
Chandrachud, in the Puttuswamy judgement, had observed that the judiciary should go beyond
sexual orientation and discuss the wider topic of sexuality which includes cohabitation and
marriage.
In the cases discussed above, the Supreme Court repeatedly recognized the right to marry an
individual of one’s own choice as being part of one’s Fundamental Rights under Article
21. Even though courts haven’t made such an observation in the specific context of same-sex
couples, the proceedings before the Delhi High Court offers an opportunity for the judiciary to
rise to the occasion and clarify that the fundamental right to freedom to marry extends to samesex couples.
MEMORIAL ON BEHALF OF PETITIONER
Page 18
CONSTITUTIONAL VALIDITY
Article 14 states that “The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.” Article 15 prohibits discrimination on
five grounds, namely “religion, race, caste, sex, or place of birth.” Gender is not mentioned
explicitly as one of the grounds.
Being cis-gendered is not a mandatory condition that needs to be fulfilled in
order to qualify as a “bride” under the Hindu Marriage Act.
It is to be noted that ‘gender’ and ‘sex’ are two different concepts. Whereas ‘sex’ is more of a
biological/medical concept, and it is the classification of human beings into different groups
based on characteristics such as type of chromosomes, hormones, genitalia, and other
secondary sexual characteristics; in contrast, ‘gender’ refers to one’s own perception of self,
their emotions, psychology, and what they personally identify themselves as. In National Legal
Services Authority vs. Union of India (2014), the Supreme Court widened the ambit of ‘sex’
as under Article 15 of the Indian Constitution to include ‘gender’ as well. If same-sex marriages
are not given legal recognition, then such discrimination will solely be based on the gender of
the individuals and hence in direct contravention of Article 15. In my opinion, barring
Homosexual Marriages or not giving recognition to them will be in contravention to Article
15.
The acceptance of the institution of marriage between two individuals of the same gender is
neither recognized nor accepted in any uncodified personal laws or any codified statutory
laws.” However, the validity of cis-trans marriages vis-à-vis the Hindu Marriage Act, 1955 has
been deliberated upon by the Indian Judiciary.
in Arunkumar vs. The Inspector General of Registration (2019), the Madras High Court dealt
with the question of the validity of a Cis-Trans Marriage (a marriage solemnized between a
Cisgender individual and a Transgender individual) as per the Hindu Marriage Act. The Court
analysed this multi-faceted issue and held that the marriage is valid as per the law.
MEMORIAL ON BEHALF OF PETITIONER
Page 19
The Court further clarified that the meaning of “bride” as per Section 5 of the Hindu Marriage
Act could not be interpreted in a manner that lacks necessary changes or is unable to be
changed. The Court essentially based its reasoning on the Self-Determination of Gender
Identity Model. It held that the meaning of the term ‘bride’ would comprise not only cisgendered women but also included transgender women and intersex individuals who identify
themselves as a “woman.”
Hence, being cis-gendered is not a mandatory condition that needs to be fulfilled in order to
qualify as a “bride” as per section 5 of the Hindu Marriage Act.
The question of whether recognizing cis-trans marriage goes against the tenets of Hindu Law
is to be considered. If it does go against the tenets, then it will weaken the case for the inclusion
of such marriages in spite of the prima facie violation of the fundamental rights of transgender
individuals because it has been held in State of Bombay vs. Narasu Appa Mali (1951) by the
Bombay High Court that Personal Laws cannot be evaluated on the basis of Fundamental
Rights provided in Part III of the Constitution.
The Madras High Court, in Arunkumar, discussed several mythological tales of the Hindu
religion involving interaction with the transgender community.
Firstly, the court discussed the story of Aravan (also spelled as Iravan), who was the son of
Pandava prince Arjuna and the Naga (serpent) princess Ulupi. The story is based on the oral
traditions of the people of the northern part of the state of Tamil Nadu. When the Mahabharata
war was in progress, Aravan was required to sacrifice his life for the sake of the Pandavas’
victory. He was given three wishes. As the last wish, Aravan wanted to be married so that his
wife could lament his death the next day and perform the requisite funerary practices. No
woman was willing to marry him because of his pre-determined fate. At this juncture, Lord
Krishna turned himself into a woman named Mohini and married Aravan. The next day, after
Aravan was sacrificed, she performed the requisite funerary rites and customs as per the wishes
of Aravan. According to oral traditions, Aravan is the symbolic husband of men who have
feminine feelings and emotions.
MEMORIAL ON BEHALF OF PETITIONER
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110
Secondly, the Court discussed the mythological story of Shikhandi. Shikhandi was born as a
female and was the elder sister of Draupadi. In order to participate in the Mahabharata war and
fulfill her vow of revenge against Bhishma, she performed penance and turned into a man (only
men were allowed to participate in the war).
Thirdly, the Court discussed the story of the Pandavas’ Agyaat Vasa. As per the legends, when
the Pandavas lost everything in gambling, they had to live in exile for 13 years, and in the last
year of the period of exile, they had to change their identity so that no one could recognize who
they actually were. Pandava prince Arjun turned into Brihannala for the period. According to
the mythological tale, Brihannala was a eunuch.
Fourthly, the Court pointed out the story of Lord Ayappa, who was born due to the union of
Lord Shiva and Lord Vishnu (in the form of Mohini).
Finally, the Court pointed out the incident in Ramayana where Lord Rama is said to have
blessed the transgender community.
After deliberating on the issue, the Court concluded that allowing cis-trans marriage would not
go against the tenets of Hinduism.
Even though homosexuality has been decriminalized in Navtej Singh Johar,
unless civil rights like marriage and adoption are recognized by the Court, the right to be with
a person of one’s choice is rendered meaningless.
One of the major arguments against legalizing homosexual marriages is that it is not a part of
the country’s culture; however, as seen in Arunkumar, homosexuality is not unknown as far as
Indian culture is concerned. Also, culture is not a static concept, and more importantly, cannot
be used to adversely affect the rights of any individual.
Since there is no express bar on homosexual marriages as per the laws governing marriage and
divorce, the present case is an opportunity to give due recognition to such marriages, like the
way in which cis-trans marriages were given recognition in Arunkumar under the Hindu
Marriage Act.
MEMORIAL ON BEHALF OF PETITIONER
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PRAYER
Therefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed on behalf of the Petioner, that this Hon’ble Supreme Court of Sind
may be pleased to adjudicate and declare that :
1) The Hon’ble court may be pleased to declare that same sex marriage will legalize
2) The Hon’ble court may be amended in The Special Marriage Act 1954 as Same Sex
Marriage will be valid as per section 5.
3) In view of the above findings, the Writ Petitions please may be allowed.
4) Any other just, fair and equitable order may kindly b passed in interest of justice.
PETIONER
MEMORIAL ON BEHALF OF PETITIONER
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