Marriage equality and judicial craft in India: new approaches to constitutional adjudication?

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Abstract

India’s family law is uniquely complex. A byzantine maze of rules governs marriage, divorce, succession, adoption, and related matters. Hindus obey one set of laws. Sikhs observe a different set. Similarly, Christians, Muslims, and Parsees apply their own laws. But this religious segregation isn’t categorical. Emblematic of the enigma that is India, some Christians, Jews and Muslims may choose to apply Hindu laws. The Constitution also disapplies these faith-based legislation to select geographies, especially the north-east region. Resident tribal groups in these areas are guaranteed their customs regarding marriage, property, etc. These religious and geographic segregations aren’t the only axes of complexity. The laws are also gendered. Age of marriage varies by sex. Under the Hindu Marriage Act, 1954, it is 21 for men and 18 for women. For Muslims, the age is still lower: girls no younger than 15 may marry. Similarly, men and women inherit properties differently. Sitting alongside these segregated and gendered laws are two secular laws: The Special Marriage Act, 1954 (SMA) and the Foreign Marriage Act, 1969 (FMA). The SMA enables inter-faith couples and those without faith to marry. (However, couples of the same faith, too, can invoke the SMA instead of any denominational legislation.) And the FMA allows Indian citizens with foreign spouses to marry in India or register their foreign marriages in India. But these secular laws also harbour some religious precepts. The SMA, for instance, deploys Hindu concepts to define eligibility conditions for marriage. And it’s gendered: marriage is prohibited unless men and women are at least 21 and 18 years of age respectively. So what happens when gays and lesbians enter this impossible morass and claim a fundamental right to marry? The Supreme Court of India wrestled with the complexity in Supriyo v Union of India.
Original languageEnglish
JournalPublic Law Review
Publication statusAccepted for publication - 3 Nov 2023

Keywords

  • Gay marriage
  • India
  • constitution
  • judicial review

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