Indra Sarma v VKV Sarma: The Supreme Court on Live-in Relationships and Gay Marriage

In its decision in Indra Sarma v VKV Sarmahanded down a couple of days ago, the Supreme Court – correctly – holds that the term “relationship in the nature of marriage” in the Domestic Violence Act covers live-in relationships. This judgment is also extremely interesting, however, because of its possible impact on the legal status of homosexual relationships.

In this case, the Court was faced with a complaint of domestic violence, and had to determine whether a woman in a live-in relationship could claim under the Act. In order to do so, she would have to show that her relationship was covered under one of the enumerated grounds under the definitional Section 2(f) – which the Court read as exhaustive. The only possible ground was “relationship in the nature of marriage.”

S. 2(f), stated in full, reads:

“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family… 

The Section specifically uses the term “two persons”; the Court nonetheless chose to observe that the clause refers to “… a relationship between two persons (of the opposite sex). (Paragraph 33), on the ground that S. 2(a) – which defines an “aggrieved person”, i.e. a person entitled to claim the remedies under the Domestic Violence Act as “a woman”. Consequently, the Court observes that:

“… hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.” (Paragraph 38)

With respect, the first part of this sentence is not logically prior to the second. It is not the case that the DV Act does not “recognize” same-sex relationships; it is only the case that the Act is aimed at combatting a specific social problem – violence against women in the domestic sphere, particularly at the hands of men – and so, it restricts its scope of operation, that is, the scope of its remedies to women who are in a domestic relationship with men. That is why S. 2(a) defines the aggrieved person as a woman, and S. 2(q) defines the respondent as “a male”. But if the aggrieved person can only be a woman, and the respondent can only be a man, then the legislature could very easily have defined “domestic relationship” as a relationship between “a man and a woman“. The fact that it chose not to do so, and used the gender-neutral term “two persons“, implies that the term “relationship in the nature of marriage” itself might well have a scope of operation that goes beyond the DV Act. Or, in other words, the Court is right to hold that offenses in the nature of domestic violence between same-sex couples are not covered by the DV Act – but the legal reason for that is to be found in the definitions of “aggrieved person” and “respondent”, and not in the definition of “domestic relationship” and “relationship in the nature of marriage“.

Furthermore, the Court expressly holds that marriage is a “civil right” (Paragraph 23), as opposed to a religious sacrament, and charged with social (as opposed to religious) significance. This means that the problem of according religious rights primacy over Part III fundamental rights per State of Bombay v Narasu Appa Mali is not at issue; consequently, if certain civil rights are being accorded to some, but being denied to others on bases that the Constitution rejects, then there is a case to be made for unconstitutional discrimination. Now recall that in Naz Foundation, the High Court held that the word “sex” in Article 15 extends to “sexual orientation” – and thus, discrimination on the basis of sexual orientation amounts to an Article 15 violation. Until now, it could have been argued – and has been argued in jurisdictions like the United States – that by excluding homosexual couples from the ambit of marriage, one is not discriminating against them – a homosexual union is simply the historical meaning – indeed, the common law meaning – of what it is to be married. Whatever the validity of this argument, in this case, the Court holds that the term “relationship in the nature of marriage” is one that has the “inherent or essential characteristics of a marriage” (paragraph 35), which it later defines as having a number of possible components such as a shared household, pooling of financial arrangements, a sexual relationship, public socialization, intention and conduct, and so on. Notice that none of these requirements (except the one of children) are inherently related to the traditional definition of marriage being between a man and a woman.

Thus, the basic point is this: by excluding homosexual couples from the ambit of the term “relationship in the nature of marriage“, and denying to them the various benefits that flow therefrom and are accorded to homosexual couples of exactly the same sort, there is a clear case of discrimination on the basis of sexual orientation. And insofar as the various (civil) rights and benefits flowing out of a “marriage” are denied to homosexual couples, there is a case of discrimination on the basis of sexual orientation. The technical labels here are not important – what is important is that whether you want to call it a marriage or a relationship in the nature of marriage, if the same bundle of rights and obligations that are extended to heterosexual couples are denied to homosexual couples (and this is not an Article 14 case, where the government can claim intelligible differentia and rational nexus, perhaps to “protect the institution of marriage”), then there is an Article 15 violation.

Same-sex unions are recognized in some form or the other in many countries now, including – lest there be claims of Eurocentrism – Argentina, Brazil and South Africa. In any event, following Naz, it is the next debate that ought to be had in India over how, precisely, our Constitution is to fulfill its promise of extending equal concern and respect to all its citizens.

3 thoughts on “Indra Sarma v VKV Sarma: The Supreme Court on Live-in Relationships and Gay Marriage

  1. Though I do see sound logic with your overall argument, I think I should point out that Indra Sarma, nor the judgment in Velusamy that it cites, bring live-in relationships per se into the folds of the DV Act. Neither of these two decisions move away from the inviolable sanctity that is accorded to ‘marriage’. The only thing they do is to concede that a marriage need not always be sanctified, or that it needs to be sanctified in a particular manner. This is why they import the requirements of ‘common law marriage’ (in Velusamy) and ‘de facto relationship’ (in Indra Sarma), all of which allude to the requirements of a marriage otherwise, albeit sans the formal solemnisation. “So you could have been married, but are not- never mind- you’re protected”, is different from “so you chose not to marry and are only living in together”. Both Velusamy and Indra Sarma in fact expressly reject live-in relationships simpliciter, and only recognise them when they ‘resemble’ a marital relationship in the manner that they imagine it. This is another reason why homosexual relationships will continue to be excluded from ‘relationship in the nature of marriage’. While there may be same-sex couples living-in together, the fact that they could not have otherwise married excludes them from protection.

    Whether the import of ‘relationship in the nature of marriage’ is such that their reading of the phrase in this way is inevitable, or that the original intention to include live-in relationships under the Act should be given more sway, is perhaps a different question.

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