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Same Sex Marriage: Review Petition Filed Against Constitution Bench Order

By LokMarg 1st November 2023

A plea has been moved in the Supreme Court seeking to review its judgement denying marriage equality rights to queer persons, urging for an open court hearing on the petition.

The review petition raised that the majority judgment has failed to take the logical next step of prohibiting discrimination. The Majority Judgment’ is facially erroneous because it finds that the Respondents are violating the Petitioners’ fundamental rights through discrimination, and yet fails to enjoin the discrimination.

“Nonetheless, the Majority Judgment fails to take the logical next step of prohibiting the discrimination. It instead invites the Respondents to consider such impacts and make necessary recommendations,” read the review petition, lamenting that “whether this will happen through proactive action of the State itself, or as a result of sustained public mobilisation is a reality that will play out on India’s democratic stage, and something only time can tell.”

The review petition has been filed against the judgement dated October 17, 2023, passed by the five-judge Constitution Bench. The review petition said that the judgement suffers from several errors.

The petition has sought to direct the instant review petition to be listed for an open court hearing to enable the petitioners to address oral arguments in support of the review petition.

“It is most respectfully submitted that for a Constitutional Court to specifically identify discrimination; but fail to grant appropriate remedies, is an abdication of its responsibility under the Constitution of this country,” read the petition.

It further added, “As correctly noted by the Chief Justice, the Majority Judgment fails to address whether Regulation 5(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that “the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation.”

The petition states that the majority judgement is self-contradictory in its understanding of “marriage”.

It acknowledges that the Special Marriage Act, 1954 (the “Act” / “SMA”) confers the “status” of marriage, observing that the Act “in fact created social status or facilitated the status of individuals in private fields” and that the Parliament “has intervened and facilitated the creation of social status. (marriage) through SMA,” the petition highlighted.

The review petition also said that the majority judgement is manifestly unjust because it countenances animus-motivated depravation of the petitioners’ fundamental rights.

“The Majority Judgment erroneously likens this case to a petition for ‘the construction of a road’ to enforce the right to travel, or creation of a ‘platform’ for a ‘poet who wishes to share their work’, when in fact, here, the Respondents have constructed the metaphoric road and poetry platform–only that homosexuals are barred from both because the Respondents think homosexuals are inherently a problem,” read the review petition.

“The Majority Judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish for the joys of a real family. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention,” the review petition said.

The plea has sought a review of the top court’s five-judge bench order, which refused to give marriage equality rights to same-sex couples.

The review petition has been moved by one of the 21 petitioners through Karanjawala & Co.

On October 17, the five-judge Constitution bench comprising the Chief Justice of India, DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha delivered the order.

There were four judgements separately authored by the CJI and Justices Kaul, Bhat and Narasimha. While the CJI and Justice Kaul had the same opinion, Justices Bhat, Narasimha and Kohli agreed with each other.

The majority judges by 3:2 held that non-heterosexual couples cannot be granted the right to jointly adopt a child. However, CJI and Justice Kaul said that these couples have the right to jointly adopt a child.

Around 21 petitions were filed in the Supreme Court seeking legal recognition of same-sex marriage.

One of the petitions earlier raised the absence of a legal framework that allowed members of the LGBTQIA+ community to marry any person of their choice. (ANI)

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To Paint Her Villain Is Shameful: Zorawar Reacts After Ex-Wife Kusha Gets Trolled

By LokMarg 28th June 2023

Social media star Kusha Kapila and her husband Zorawar Ahluwalia recently announced their separation via a post on Instagram.

After announcing the separation, Kusha faced a lot of backlash online after her old interviews started surfacing on social media.
Amid all the backlash, her ex-husband Zorawar broke his silence and came in support of Kusha.

Taking to Instagram, on Wednesday, Zorawar shared a note on his stories which reads, “We realise we live public lives, but we still hold certain things sacred. Our marriage and respect for each other being one of them. Divorce much like our marriage was a decision we both made together, after much deliberation and thought. It was a tough and painful decision but one we took collectively, for the sake of both of our well-being. What has transpired over the last 24 hours, with Kusha being subject to vile attacks online makes me sad and disappointed. To attack Kusha’s character and paint her as some villain is shameful. Let’s all please do better.”

Recently, Kusha’s old interviews surfaced on social media in which she could be seen interacting with Karan Johar.

During their conversation, Karan was heard telling her, “Remember sexual infidelity is not infidelity.” To which she replied, “I believe that.” Her reaction to this old interview didn’t go down well with some of the audience.

Reportedly, the duo tied the knot in 2017 after years of dating.

On Monday, Kusha shared a note on their Instagram handle which reads, “Zorawar and I have mutually decided to part ways. This hasn’t been an easy decision by any measure but we know it’s the right one at this point in our lives. The love and life we have shared together continues to mean everything for us but sadly, what we seek currently for ourselves doesn’t align. We gave it our all, until we couldn’t anymore.”

She added, “A relationship ending is heartbreaking and it’s been a tough ordeal for us and our families. Thankfully, we have had some time to process this, but what we shared and built together panned for over a decade. We still need a lot more time and healing to get to the next phase of our lives. Our current focus is to get through this period with love, respect and support towards each other.”

Kusha is a popular social media influencer. She has over 3 million followers on Instagram and more than 9 lakh subscribers on YouTube.

She was also a part of Riteish Deshmukh’s film ‘Plan A Plan B’ which also starred Tamannaah Bhatia. The film premiered on the OTT platform Netflix.

Apart from that, she also appeared in web shows like ‘Masaba Masaba’, ‘Case Toh Banta Hai’ and ‘Comicstaan’.

On the other hand, Zorawar is also a social media influencer with 90 thousand followers on Instagram. (ANI)

Govt Opposes Plea To Recognise Same-Sex Marriage

By LokMarg 12th March 2023

Centre, in its affidavit, has opposed the plea seeking legal recognition of same-sex marriage, saying that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit and they are clearly distinct classes which cannot be treated identically.

The Centre has filed the affidavit countering the demand made by various petitioners seeking legal recognition of same-sex marriage.
In the affidavit, Centre has opposed the plea and said that pleas seeking legal recognition of same-sex ought to be dismissed as there exists no merit in these petitions.

Same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically, the government said as its stand against the petition seeking legal recognition of LGBTQ marriage.

It is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos, the Centre said in its affidavit and added that western decisions sans any basis in Indian constitutional law jurisprudence, cannot be imported in this context.

In the affidavit, Centre apprised the Supreme Court living together as partners by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit concept of a husband, a wife and children.

Centre submitted that the principles of legitimate state interest as an exception to life and liberty under Article 21 would apply to the present case. Centre submitted that the statutory recognition of marriage as a union between a “man” and a “woman” is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based upon its own cultural and societal values which are recognized by the competent legislature.

“There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages),” the government said.

Centre submitted before Supreme Court that statutory recognition of marriage as a union between a “man” and a “woman” is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based upon its own cultural and societal values which are recognized by the competent legislature.

Centre submits that the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to extend to include the fundamental right for a same-sex marriage to be recognized under the laws of the country which in fact mandate the contrary.

Despite the decriminalization of Section 377 of the Indian Penal Code, the Petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country, Centre made it clear in its affidavit.

“Recognition of marriage necessarily brings with it the right to adopt and other ancillary rights. It is, therefore, necessary that such issues are left for being decided by the competent Legislature where social, psychological and other impacts on society, children etc., can be debated. This will ensure that wide-ranging ramifications of recognizing such sacred relationships are debated from every angle and legitimate state interest can be considered by the Legislature,” Centre said.

Adding further, the government said that marriage between a biological man and a biological woman takes place either under personal laws or codified laws and the parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow.

“Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having a sexual relationship with same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as a father and the biological woman as mother,” the affidavit said.

Countering the petitioner’s submission, the government submitted that registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions -such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals.

If marriage is to be solemnised and registered under any personal law; ‘requirements for registration’, if marriage is to be registered under the Special Marriage Act; ‘restitution of conjugal rights’; ‘judicial separation’, ‘divorce’; ‘conditions of divorce’; ‘alimony and maintenance pendente lite’, ‘permanent alimony and maintenance’; ‘expenses of marriage proceedings’; ‘disposal of property’, ‘adoption’, ‘guardianship’, etc will be affected, which is the exclusive domain of the Legislature, the government said.

The government submitted that the Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction and thereby claim legal and statutory rights and consequences.

Any interference with the same would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values, Centre submitted.

Various petitions are being dealt by Supreme Court seeking legal recognition of same-sex marriage under Foreign Marriage Act, Special Marriage Act and other laws.

One of the petitions earlier has raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice. According to the earlier petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that, “the exercise of which ought to be insulated from the disdain of legislative and popular majorities.” The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so. (ANI)

Rushad Rana Gets Married

By LokMarg 4th January 2023

Actor Rushad Rana recently tied the knot with creative director Ketaki Walawalkar.

The couple’s wedding ceremony was attended by family members and close friends from the industry.
Anupamaa actress Rupali Ganguly shared several pictures from the wedding and extended heartfelt greetings to the couple on social media.

“Ho gayi shaaaadddiiiiii,” Rupali captioned the pictures, adding a string of red heart and evil eye emojis.

Rupali’s post was flooded with congratulatory wishes for Rushad and Ketaki.

“Badhai,” actor Ronit Roy commented.

Actor Jaswir Kaur dropped a red heart emoji in the comment section.

Rupali also dropped a few pictures from the couple’s mehendi function.

“I love both so much Mrs and Mr Walawalakar-Rana wish u both a lifetime of love and happiness (sic),” he post read.

Rushad was previously married to Khushnum. However, they parted ways in 2013. Rushad is best known for featuring in shows like Miya Biwi Aur Murder, Hip-H Hip Hurray, Kumkum Bhagya, and more. (ANI)

SC Notice To Govt On Uniform Age Of Marriage For Muslim Girls

By LokMarg 9th December 2022

The Supreme Court on Friday issued notice to the Centre on a petition filed by the National Commission for Women (NCW) to make the minimum age of marriage for Muslim girls the same as that of persons belonging to other religions.

A bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha sought a response from the Centre within four weeks.
The minimum age for marriage in India is currently 18 for women and 21 for men. However, the minimum marriage age for Muslim women is when they attain puberty and 15 years is presumed to be that age.

The NCW said that allowing Muslims to marry at the age of puberty (around 15) is arbitrary, irrational, discriminatory and violative of penal laws.

The plea said even the Protection of Children from Sexual Offences Act (POCSO) does not provide for those under 18 to consent to sex.

It said the PIL was filed for enforcement of the fundamental rights of minor Muslim women to bring Islamic personal law in consonance with the penal laws applicable to other religions.

Earlier, the apex court agreed to examine the plea of the National Commission For Protection of Child Rights (NCPCR) against an order of the Punjab and Haryana High Court which said a Muslim girl of 15-years-old is competent to enter into a contract of marriage with a person of her choice under the Muslim Personal Law.

It had issued notice to the Punjab government and appointed senior advocate Rajshekhar Rao as amicus curiae to assist the court in the matter.

The High Court in June in its order had cited the provisions of the Muslim Personal Law on marriage to rule that a 15-year-old Muslim girl was competent to enter into a contract of marriage with a person of her choice.

The NCPCR sought to ensure the proper implementation of statutory laws that are specifically in place to protect children below the age of 18 years.

The Commission highlighted the provisions of the Prohibition of Child Marriage Act (PCMA) 2006 and the Protection of Children from Sexual Offences Act (POCSO) to put forth its reasons for challenging the High Court ruling.

NCPCR said that the order is violative of PCMA which, the petition said, is a secular law that is applicable to all.

“The provisions of POCSO say no child below the age of 18 years can give valid consent,” it said.

The high court order had come on a plea by a Pathankot-based Muslim couple that had approached the court seeking protection after allegedly being threatened by their families for marrying without their permission.

The girl and a 21-year-old man had said that they got married as per Muslim rites and ceremonies.

The High Court had granted protection to the Muslim couple noting that the law is clear that the marriage of a Muslim girl is governed by Muslim Personal Law. (ANI)