Stamen of issues

Issue no 1

Whether legalizing same sex marriage wil affect our society as well as complicate the smooth
functioning of our family laws or not ?

Issue no 2

Is Judicial mechanism is a substitute for parliamentary mechanism in law making process ?

1) Whether legalising same sex marriage wil affect our society as well as complicate the smooth
functioning of our family laws or not ?

NATURE OF THE CONCEPT OF MARRIAGE

1.It is submitted that at the outset the notion of marriage itself necessarily and inevitably
presupposes a union between two persons of the opposite sex. This definition is socially,
culturally and legally ingrained into the very idea and concept of marriage and ought not to be
disturbed or diluted by judicial interpretation.

While interpreting statutory law, this court has in the past had occasion to
define marriage. In Reema Aggarwal v. Anupam, (2004) 3 SCC

199 it has been held:

8. In response, learned counsel for the respondents submitted that

to constitute a marriage in the eye of the law, it has first to be

established that the same was a valid marriage. Strong reliance was

placed on Bhaurao Shankar Lokhande v. State of Maharashtra

[AIR 1965 SC 1564 : (1965) 2 Cri LJ 544] in that context.

Reference was also made to Sections 5(i), 11 and 16 of the Hindu

Marriage Act, 1955 (for short “the Marriage Act”) to contend that

the stipulations of conditions of a valid marriage, the

circumstances in which the marriage becomes void and the

protection given to children of void and voidable marriages

respectively makes the position clear that wherever the legislature

wanted to provide for contingencies flowing from void or voidable

marriages, it has specifically done so. It is latently evident from

Section 16 of the Marriage Act. There is no such indication inSection 498-A IPC. The language
used is “husband or relative of the husband”. Marriage is a legal union of a man and a woman
as husband and wife and cannot extend to a woman whose marriage is void and not a valid
marriage in the eye of the law.”

Again in Mr ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296 it has been held as follows:

31. Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It
has to be mental, psychological and physical union. When two souls thus unite, a new soul
comes into existence. That is how, life goes on and on on this planet..”

6.It is submitted that codified and uncodified personal laws take care of all branches of every
religion like Mitakshara, Dayabhaga etc. in Hindus
 2) Is Judicial mechanism is a substitute for parliamentary mechanism in law making process ?

1). It is humbly submitted that traditionally the institution of marriage is not an individual-centric
institution but is a socio-centric institution which is premised on societal recognition of a marital
relationship between consenting heterosexual adults. Critically, procreation has been the traditional
object of such unions and State interest exists, among other things, precisely to protect the rights of
even unconscious citizens such as infants and minors who are the products of such unions. To state this
obvious fact is not to express non-binary genderphobia. While the Indic civilization is not unfamiliar with
non-binary gender relationships and may not have penalized it, it is equally a fact that a union between
two consenting heterosexual adults has been and remains the norm, and public morality is typically
shaped by the norm. This does not amount to majoritarianism, but is a fact of nature and society.
Consequently. recognition of those classes of relations which are outside the norm legitimately calls for
a societal churn on the extent to which the penumbras of the norm can be extended to accommodate
non- normative relationships. The participation of the normative mainstream in this discussion is both
inevitable and indispensable in a parliamentary democracy governed by a Constitution. While public
morality, as informed by normative attitudes, does not constitute the whole of societal discourse or
even constitutional morality for that matter, constitutional morality must, at the very least, have regard
to public morality with there being a clear distinction between the two. Especially in matters of culture
and society, public morality is an integral and essential part of the calculus of constitutional morality if
not the whole.

2).Viewed in this light and given the socio-centric nature of the institution of marriage, the Petitioners'
approach and the reliefs sought have the unfortunate effect of viewing a social institution through
limited individual lens. In that sense, the invitation of the Petitioners to this Court is to individualize the
nature of a social institution such as marriage, which effectively defeats the history and purpose of the
need for socio-legal recognition of marriage. If the norm were to not require socio-legal recognition of a
marital union, there would be no prescribed method for entering into such a union nor would there be a
need for statist regulation. The Petitioners' prayers themselves are directed towards statist recognition,
albeit through an unelected organ which does not represent public morality or the will of the electorate.
Put differently, the prayers have the effect of coercing the rest of the society into agreeing with the
views of the Petitioners using the Court as an instrumentality, which reflects both the undemocratic and
unconstitutional nature of the prayers sought. In a nutshell, the petitions are unsustainable, and the
reliefs sought are untenable, although understandable.
3). Without prejudice to the above submissions, it must be appreciated that the society has travelled a
significant distance in relation to its attitude towards non-heterosexual orientations and relationships.
As highlighted by the Petitioners themselves, the enactment of The Transgender Persons (Protection of
Rights) Act of 2019 is proof of this movement. Therefore, the society must be allowed to recognize
NHMU at a pace which is not forced , if it chooses to, with due regard to all relevant considerations
involved in the socio-legal recognition of such unions.

4). It must be appreciated that the legal recognition of NHMU would be a "positive" act in the sense that
it is very different from the decriminalization of non-heterosexual non-incestuous acts between
consenting adults which was undertaken in Navtej Singh Johar v Uol (2018) 10 SCC 438. Navtej Johar
involved protection of civil liberties from the application of a penal law which did not result in or call for
the creation of a regulated ecosystem. In stark contrast, the legal recognition of marital union results in
the creation of a regulated legal system, more so in the case of NHMU because of the complexities and
nuances involved. The creation of a regulated ecosystem is clearly in the domain of the Legislature, not
the Judiciary. Critically, even as the State is examining the question of gender-neutral laws in hetero-
normative relationships, a piecemeal approach to legal recognition of NHMU and that too through the
instrumentality of the Judiciary is bound to create rights in silos with no room or thought spared for
harmonious interplay between legislations. It is obvious that creation of a regulated ecosystem requires
creation of the requisite infrastructure including human resources that are sensitized and trained to the
nuances of sex, gender and orientation. Clearly, it falls upon the Legislature and the Executive to ensure
implementation to the last mile and since the obligation is on the Legislature followed by the Executive,
formulation of policy and enactment of laws too must be in the realm of the Legislature and the
Executive. If this position were to be deviated from, even if the Judiciary were to recognize NHMU, albeit
unconstitutionally, such recognition would fail on the ground in the absence of feasibility and
practicability being factored in.

5) It is humbly submitted that apart from circumvention of legislative prerogative and sovereignty,
violation of the doctrine of Separation of Power ("SOP") seriously impinges and encroaches upon
Presidential prerogative under Article 111 of the Constitution. Under the said Article, firstly, the Hon'ble
President has the right to receive the bill for his assent after it is passed by both Houses of the
Parliament. This translates to countervailing obligations on the Parliament to present the bill for the
Hon'ble President's assent. Further, under the Article, not only does the Hon'ble President have the right
to withhold assent to a Bill passed by the Houses of the Parliament, but also has the power to
recommend amendments to the Bill so presented to him, or urge reconsideration of the Bill or any
provisions thereof. This critical and mandatory provision would be rendered infructuous if the Judiciary
were to enter the realm of law and policy making

6) In addition to the above, reliance is also placed on the manual of Parliamentary Procedures issued by
the Ministry of Parliamentary Affairs in July 2019, which contains a specific chapter, chapter 9 titled
"Legislation". The said chapter spells out in great detail, the steps to be undertaken in promulgating a
legislation. Critically, Clause 9.2 deals with the pre-drafting stage of a legislative proposal which is
divided into 4 broad stages that include consultation between the concerned ministry/department to
which the legislative proposal relates, and the ministry of Law and Justice. Critically, the latter ministry
shall review the legislative proposal for legal and constitutional feasibility/validity as also on the
"necessity and desirability of such a proposal". Clause 9.5 envisages approval of the cabinet followed by
an assessment under Clause 9.6 of the expenditure involved in respect of the Bill and a preparation of
memorandum regarding delegated legislation, if needed. Critically, Clause 9.7.1 envisages securing the
recommendation of the Hon'ble President for the introduction of the Bill, which is different from the
assent sought under Article 111.

True copy of the relevant extract of the Manual of Parliamentary Procedures published by the
Government of India (2019) is annexed herewith and is marked as ANNEXURE A-1.

7). Clause 9.12 envisages post introduction of the Bill, the constitution of a Select Committee or a Joint
Committee to which the Bill may be referred to or circulation for eliciting public opinion. Pursuant to
Article 111, Clause 9.21 deals with presentation of the Bill passed by the Houses to the Hon'ble
President for his assent. From a perusal of this chapter of this manual, it becomes evident that there is
no comparable mechanism when the Judiciary embarks on recognizing a positive right, such as the right
to marry under the law, which entails the creation of a regulated ecosystem. Consequently, the
infraction of the doctrine of SOP has serious consequences at several levels and therefore the invocation
of Article 141 to create rights or to lay down law must be exercised sparingly and only in the fittest of
cases without infringing upon societal participation, legislative prerogative and Presidential prerogative.
Statement of jurisdiction

Respondent most humbly submits before The Hon’ble supreme court of Indica that, this court is
having jurisdiction under Article 32 of the constitution .However, the fundamental rights of the
petitioner are not violated .the issue raised in this particular petition is a socio-legal issue which
comes under the domain of legislative authority and not in the domain of judicial authority.
therefore I request to Hon’ble supreme court to refere this matter to legislative authority and
dismiss the present petition .
Statements of facts