IN THE HONOURABLE SUPREME COURT OF INDIA,

AT NEW DELHI

Writ Petition No. ___________/2023

BETWEEN
COLOURS, NGO …. PETITIONER

AND

UNION OF INDIA …. RESPONDENT

WRIT PETITION FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA

MEMORANDUM OF OBJECTIONS ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSELS FOR THE RESPONDENT
TABLE OF CONTENTS
LIST OF ABBREVATIONS
INDEX OF AUTHORITIES
TABLE OF CASES
 STATEMENT OF JURISDICTION

The petitioners have approached the Hon’ble Supreme Court of India

under the Article 32 of the Constitution of India, challenging the
constitutional validity of the Special Marriages Act,1954 and the Foreign
Marriage Act,1969. The petitioner humbly submits to the jurisdiction of
this Hon’ble Court.

Article 32 of the Constitution of India – Remedies for enforcement of rights

conferred by this part –

(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders
or writs, including writs in nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this
Part.

(3) Without prejudice to the powers conferred 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.
 STATEMENT OF FACTS

• Mr. Ramesh and Mr. Dinesh, citizens of Republic of India,

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 in
Ireland. They were in marital relationship for two years and
were residing in Ireland.

• On 15th February, 2018 they shifted to India and both started

to live in an apartment situated at Bandra, Mumbai.

• On 10th September, 2018 Mr. Ramesh left the apartment and

went to stay separately without informing Mr. Dinesh.
Despite several attempts of contact from Mr. Dinesh, Mr.
Ramesh did not respond.

• Mr. Dinesh tried filing a case, but he was not allowed to file a
case.

• Aggrieved by this Mr. Dinesh approached the Petitioner NGO

named Colours, who work and fight for the rights of LGBTQI
(Lesbian, Gay, Bisexual, Transgender, Queer, Intersex)
section of the society in India.

• The petitioner NGO has filed this writ petition after

consultation with their panel of legal experts against the
respondent Government.
 ISSUES RAISED

1. Are provisions of Special Marriages Act and Foreign

Marriage unconstitutional?

2. Is denial of same sex marriage a violation of

Article 19 (1) (a) and Article 21 of the Constitution?
 SUMMARY OF ARGUMENTS

1. Provisions of Special Marriages Act and Foreign

Marriages Act are not unconstitutional.

It is humbly submitted by the Respondent before this Hon’ble

Court that the provisions of the Special Marriages Act, 1954 and
the Foreign Marriage Act, 1969 are not unconstitutional as the
same is enacted keeping in mind the constitutional provisions.

2. Denial of same sex marriage is not a violation of Article

19 (1) (a) and Article 21 of the Constitution.

It is humbly submitted by the Respondent before this Hon’ble

Court that denial of same sex marriage is not a violation of Art.
19 (1) (a) and Art. 21 of the Constitution Of India as both the
rights are not absolute in nature and are subjected to reasonable
restrictions owing to public order, decency or morality.
 ARGUMENTS ADVANCED

1. The provisions of Special Marriage Act and Foreign Marriage

Act not unconstitutional.

1.1. It is essential to understand the meaning of the term

“marriage” as described in various religions, before
advancing arguments regarding the constitutionality of
Special Marriages Act and Foreign marriage Act.

1.2. According to Hinduism, marriage – “vivaha” means –

‘taking the girl away in a special way; marriage’.

Vivaha or marriage is one of the sixteen samskaras or

sacraments, but considered the most important of them
all. The main purpose of marriage was to enable a man, by
becoming a house holder, to perform Vedic sacrifices and
to continue the lineage by procreating worthy children.

The Dharmasastras have prohibited marriage if the boy

and girl belong to the same pinda or gotra. The inter caste
marriages were allowed in the ancient period.

1.3. According to Christianity, marriage means, The Bible

teaches, “Husbands, love your wives” (Ephesians 5:25) and
“teach the young women … to love their husbands” (Titus
2:4). Love in marriage can be deeper and more selfless than
in any other relationship. It is this type of love that Jesus
expects of His followers, and it is the virtue that couples need
the most.

1.4. According to Quran (24:32) asserts that marriage is a

legitimate way to satisfy one's sexual desire. Islam recognizes
the value of sex and companionship and advocates marriage
as the foundation for families and channeling the fulfillment
of a base need.
1.5. It can thus be understood from the above views that,
marriage is a relationship that is established between a male
and a female for creating a family and performing various
duties together. Marriage as an institution has assumed
greater role in the society. It thus needs to be regulated to
keep the society intact. And the main purpose of having the
Constitution for the country is also to keep the society intact.
Therefore, any law that is made keeping in mind the societal
good and harmony cannot be termed unconstitutional.

1.6. The Special Marriage Act of 1954 and the Foreign

marriage Act of 1969, provide only for a marriage between a
male and a female who have completed the age of 21 years
and 18 years respectively.

Section 4(c) of the Special Marriage Act,1954 provides a

condition for solemnization of special marriage if, the male
has completed the age of twenty-one years and the female the
age of eighteen years;

Likewise, the Foreign Marriage Act of 1969 in section 4(c)

provides a similar condition relating to solemnization of
foreign marriages if, the bridegroom has completed the age of
twenty-one years and bride the age of eighteen years at the
time of the marriage.

1.7. If the marriages are registered according to Special

Marriage Act, 1954 and Foreign Marriage Act, 1969, it has to
pass the test of validity as provided in Section 24 of the
Special Marriage Act, 1954.
Section 24 of the Special Marriage Act, 1954 provides that
any marriage solemnized under this Act shall be null and
void, if any of the conditions specified in clauses (a), (b), (c),
(d) of section 4 has not been fulfilled.

1.8. Thus, if a marriage has to be solemnized according to

the Special Marriage Act or the Foreign Marriage Act, it has
to be performed between two consenting adults of which one
must be a male and the other, a female. If the condition has
 not been satisfied, then the marriage would be null and void
as provided in the section.

1.9. The Supreme Court in the case of Mr.X v/s Hsopital Z

{(1998) 8 SCC 296}, has held that, “31. Marriage is a 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.”

“32. Mental and physical health is of prime importance in a

marriage, as one of the objects of the marriage is procreation
of equally healthy children ...”

1.10. From the view of this Hon’ble Court in the above case it
can be inferred that, marriage, a sacred union must happen
between a male and female, which is in consonance with the
rules of the nature.

1.11. The case in hand seeks the validation of a marriage

between two consenting adults, who belong to the same sex
group. Keeping in mind the above discussion, no law in India
provides for marriage between couples belonging to the same
sex, and also recognizing the marriage between same sex is
not only against the theology of different religions but also
against the nature. Anything that is unnatural is against the
constitution and not those, which are in harmony with the
nature. Thus, it is submitted that, the petitioner seeking
recognition of marriage between the couple belonging to the
same sex is not maintainable both in the eyes of law and as
well as the nature.

1.12. Thus, it is humbly submitted before this Hon’ble Court

that, the Special Marriage Act, 1954 and Foreign Marriage
Act,1969 conform to with the provisions of the Constitution
and the prayer of the petitioner is to be dismissed
accordingly.
2. Denial of same sex marriage is not a violation Article 19 (1)
(a) and Article 21 of the Constitution?

2.1. The Articles 19(1) (a) and 21 of the Constitution, though

constitute the heart of the constitution, cannot be exercised
absolutely. The makers of the constitution were so conscious
that they imposed certain restrictions on them. While
reading Article 19(1) (a to g), it has to be read with the
corresponding restriction that is imposed from clauses 2 to
6 respectively.

Article 19 (1) (a) provides for the right to freedom of speech

and expression to all the citizens of the country. On the other
hand, its corresponding restriction reads as, “Nothing in sub
clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so
far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the
interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence.”

The language of the Constitution is so clear that, the bare

reading of the provision helps us understand that the State
has the authority to impose reasonable restriction by way of
making law, in the interest of the sovereignty, integrity,
security of the state, friendly relations with the foreign state,
public order, decency or morality or in relation to contempt
of court, defamation or incitement of an offence.

2.2. Similarly, Article 21 of the Constitution is also not

absolute. It reads, “no person shall be deprived of his life or
personal liberty except according to procedure established
by law.” The phrase “except according to procedure
established by law” sets out that certain restrictions can be
imposed, on the personal liberty of a person, by way of laws.

In the case of Masood Alam v/s Union of India {(1973) 1 SCC

551}, it was held, “the constitutional guarantee of various
 freedoms and personal liberty is not meant to be abused or
misused so as to endanger and threaten the very foundation
of the pattern of free society.”

It can be clearly made out from the above decision of the

Supreme court that, the freedoms as enshrined in the
constitution are not absolute in nature but are subject to
certain reasonable restrictions which in turn help the society
to maintain its balance and strengthen its foundation.

2.3. The Hindu Marriage Act, 1955 along with the Special
Marriage Act 1954 and the Foreign Marriage Act, 1969
provide for a criterion, that the parties to a marriage should
not fall within the degrees of prohibited relationship; which
is to be looked into while solemnizing a marriage, otherwise
it would turn out to be a void marriage. The main purpose of
such provision in law is to regulate marriage which is
incestuous. This criterion for marriage under these laws
prove to be a reasonable restriction that is imposed as per
section 19 (1) (a) and Article 21 of the Constitution. This
reasonable restriction is imposed to maintain public order,
decency and morality in the society. And denial of such
marriages does not violate Article 19 (1) (a) and Article 21 of
the Constitution.

2.4. In a similar fashion, there can be a regulation on

marriage between persons belonging to the same sex as it is
also opposed to public order, decency and morality of the
society. And such denial would also not amount to violation
of Article 19 (1) (a) and Article 21 of the constitution.

2.5. It is also to be borne in mind while deciding the issue of

same sex marriage that Article 21 of the Indian Constitution
includes within its ambit Right to Clean Environment and
Ecological Balance. Right to clean environment and
maintaining ecological balance is not restricted to just
balancing the ratio of flora and fauna but also includes
within its scope the balance that is to be maintained of
human population. As humans also form a part of the
environment and ecology, it is necessary to maintain the
balance of human population, if otherwise, humans would
also become endangered like that of animals in future.
2.6. Allowing same sex marriage would not only cause
imbalance in the society but also causes a great distress to
the environment as marriage between same sex people would
leave no scope for procreation. As discussed above, one of
the main purposes of marriage is procreation, which in turn
helps to maintain the ecological balance, and it cannot be
achieved if the marriage between same sex people is allowed.

2.7. The Hon’ble Supreme Court in the case of Navtej Singh

Johar & Ors. v/s Union of India, decriminalized all the
consensual sex among adults including homosexual sex
which fell under the ambit of Sec.377 of the Indian Penal
Code. The Supreme Court in this case has just
decriminalized the offence and has nowhere upheld the
validity of the same sex marriage. Thus, the petitioner cannot
make out any case with the decision stated above as
marriage is totally a different concept which is not concerned
with sex alone.

2.8. The petitioner has also raised the issue of gender

equality. Gender equality arises for consideration only if one
gender is given prominence over the other or if they are
discriminated over the other. In India since the ancient time,
no discrimination based on gender was allowed and now the
constitution has guaranteed the Right to Equality under
Article 14, which keeps the society intact by seeing all
persons equally before the eyes of law. Thus, the issue raised
by the petitioner regarding gender equality is devoid of any
merits as the State has not discriminated between any
gender.

2.9. It is further humbly submitted before this Hon’ble Court

that even if validation of the same sex marriage is to be
considered, it is for the State to make law in this regard,
which is very well established under the Article 246 (4) of the
Constitution and it does not fall within the purview of the
Court to make any law.

In the case of Security Association of India v/s Union of India

{(2014) 12 SCC 65}, it is held that, “there is a presumption
 towards the constitutionality of a statute and the courts
should proceed to construe a statute with a view to uphold its
constitutionality.”

It can be understood from the above decision of this hon’ble

Court that, the role of parliament is to make law and the role
of Court is only to uphold the constitutionality of an act, if
challenged. The court does not have the power to make any
law of its own motion.

2.10. It is humbly submitted before this Hon’ble Court that;

the petitioners have failed in considering the various aspects
which go behind the issue. And thus, it is prayed to dismiss
the matter.
 PRAYER

In the light of the facts of the case, issues raised, arguments

advanced and authorities cited, the counsel on behalf of the
respondent humbly prays before this hon’ble Court to kindly
adjudge and declare that:

1. Provisions of the Special Marriage Act, 1954 and the Foreign

Marriage Act, 1969 are constitutional.
2. Denial of same sex marriage is not a violation of Article 19
(1) (a) Article 21 of the constitutional.
3. And / Or pass any other order which the bench deems fit in
the best interest of justice, equity and good conscience and
for this act of kindness, the counsel on behalf of the
respondent as in duty bound shall forever pray.

Respectfully submitted by the

Counsel for respondent