The Indian legal system still does not recognize same-sex marriages within the territory of India. It is irrespective of the fact whether the marriage is between people domiciles in India or foreigner. As it is not allowed within India, thus people have started evading the law by solemnizing same-sex marriages in countries where it is legally recognised but the question then arises is that whether India is bound to recognise such marriages, and will such couples be entitled to marital rights equivalent to what has been provided for others under Indian legal system.
PRINCIPLES OF PRIVATE INTERNATIONAL LAW
There are certain principles that are applied when it comes to recognising the validity of a foreign marriage either heterosexual or homosexual. With respect to the validity of a marriage, there are certain material conditions (capacity, prohibited degrees, etc.) and some formal conditions (ceremonies/rituals and procedures, etc.). The material conditions of a marriage are governed either by ‘domicile theory’ or ‘matrimonial home theory’ whereas the formal conditions are governed by the laws of the land where the marriage was celebrated i.e., ‘lex loci’. It was held by an Indian court that the rights and obligations of a foreign heterosexual marriage are governed by the laws of the country in which the parties have been domiciled.
FOREIGN SAME-SEX MARRIAGE
In India, this is no legislation that recognises marriages (homosexual or heterosexual) between foreigners that were celebrated abroad. As there is no legislation on this subject matter thus India is not bound to recognise the same. The Foreign Marriage Act 1969 provides legal recognition to marriages that were solemnized abroad provided that at least one of the parties is domiciled in India. It is important to notice that India is still not bound to recognise such marriages as s. 23 of the Act clearly states that the central government ‘may’ recognise such marriages as legally valid in India if it is satisfied that the laws of the country in which the marriage was solemnised are similar to that of the act. It is to be noted that the central government is not bound to recognise any marriage that takes place abroad, as the language of the section uses the word ‘may’ and not ‘shall’. Moreover, the act does not recognize same-sex marriages because to register a marriage u/s. 17, it is important to fulfill the requirements u/s. 4 which clearly states the ‘age of marriage of a bride and bridegroom’.
THE GROUND OF PUBLIC POLICY
In cases where the marriage solemnised abroad to fulfill the material and formal conditions required for a valid marriage, countries tend to refuse to recognise them based on the ‘public policy’ argument. For instance, a marriage solemnised abroad which fulfills the formal conditions as per the ‘lex loci’ and material conditions as per the ‘law of domicile’, an Indian court might still refuse to legally recognise it by stating as it being ‘against the public policy’. Public policy is a vague term and thus open to interpretation based on the discretion of the court. In the case of Pires v. Pires, the Indian court refused to recognise a foreign decree of divorce among a Catholic foreign couple as Catholic marriage was sacramental, and divorce was thus not recognised at that time in such marriages. In family law related cases, there is more scope of the role played by ‘public policy’ as such matters are dealt with by the personal laws of the parties which are based on religious, cultural, and societal values.
The application of public policy can be categorised into (1) public interest, (2) public morality, and (3) public security. There is a need to strike balance between private interest and public arrangement. Also, public beliefs and morality need to be safeguarded under public policy, but there are certain liberalists who believe that lesbianism, same-sex marriages, etc. fall outside the purview of public morality instead they fall within the ambit of private morality.
ANALYSING VAIBHAV JAIN’S PETITION
The petition has been filed by the petitioner so that legal recognition can be provided to their same-sex marriage through registration either under The Foreign Marriage Act or Special Marriage Act. This petition impugns the provisions of both the acts as they do not provide for the registration of same sex marriage. The Foreign Marriage Act was enacted to provide validity to a marriage solemnized abroad provided that one of the parties is an Indian domiciled citizen. Such marriage can only be registered if it fulfills the requirements mentioned under the act but the act u/s. 4 clearly mentions the required ‘age of the bride and bridegroom’ which prima facie refers to a woman and man. Moreover, it is necessary that the parties do not fall under the ‘prohibited degree of relationship’ (which would also apply to the union between the same sexes) and at least of their personal law should permit such marriage irrespective of the prohibited degree. Even the Special Marriage Act, u/s. 4(c) and (d) deals with similar requirements. Though the purpose of SMA was to recognise marriage beyond customary laws but still there are certain requirements mentioned under different provisions of the act that has to be fulfilled before getting the marriage registered under SMA.
In the present case, both the petitioners are of Indian origin and even if they have acquired foreign citizenship still it is their personal laws that would apply with respect to matters relating to marriage. It is irrelevant whether the country in which they solemnised the marriage permits same-sex unions or not. As mentioned above, regarding the ‘material conditions’ of a valid marriage it is the law of the domiciled country that would apply and not the law of the country where marriage was solemnised (lex loci). The personal laws of both the petitioners do not permit such unions and so it will be difficult to get their marriage recognised under the Foreign Marriage Act.
In Lakshmi Sanyal v. S. K. Dhar, it was held that to decide upon whether a marriage is valid or not, proper consideration must be given to the law of the domicile country of the parties, and it is the personal laws of the parties that would govern the material conditions of marriage.
In India, one of the key reasons for not legalising same-sex marriages was because of s. 377 IPC and that such unions are against public policy. After the Navtej Singh Johar & Ors. V. UOI judgment and the decriminalization of s. 377, the argument that was attached with s. 377 holds no value. Moreover, with the changing times, society is progressing and so are the moral conceptions and norms through which a society is driven. After the NALSA v. UOI judgment, even the rights of transgender people have been recognised by Indian courts and subsequently by the legislature through the passing of the Transgender Persons (Protection of Rights) Act, 2019.
Previously, many states which did not recognise polygamous marriages refused to recognise immigrants’ polygamous marriages but with time they realised that immigrants have their culture, belief system, etc., and thus started recognizing the same. Though, initially, they considered such marriages as against public policy and morality. Similarly, this analogy can be drawn with respect to foreign same-sex marriages especially for the couples who are domiciled in countries that recognise such unions.
As of now, India does not provide any recognition to same-sex marriages solemnised abroad irrespective of whether it is between a foreign couple or an Indian domiciled couple. As the marriage between same-sex couples has not been legally recognised in India, thus as a result, they are not entitled to the marital rights that are enjoyed by other couples within the territory of India. Certain economic benefits under governmental schemes like Employment Provident Fund Scheme etc. are not available for same-sex couples. It is for the recognition of these benefits and minimal marital rights, petitions are being filed in the apex court to legally recognise such marriages. One of the current petitions which deal with the recognition of same-sex marriage so that the couple can avail such benefits has been filed and is pending in court (Kavita Arora and Another v. UOI and Another).
Author’s name: Dhriti Yadav (Bennett University, Greater Noida)
 Noor Jahan Begum v. Eugene Tiscenko, AIR 1941 Cal. 582.
 The Foreign Marriage Act, 1969 (Act 33 of 1969), s. 23.
 The Foreign Marriage Act, 1969 (Act 33 of 1969), ss. 17(2).
 The Foreign Marriage Act, 1969 (Act 33 of 1969), ss. 4(c).
 AIR 1967 Goa 113.
 Satya v. Teja, 1975 AIR 105.
 F. Ghodoosi, “The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements” 94 Nebraska Law Review 726 (2015).
 Supra note 4.
 The Special Marriage Act, 1954 (Act 43 of 1954), ss. 4(c).
 The Special Marriage Act, 1954 (Act 43 of 1954), ss. 4(d).
 AIR 1972 Goa 2667.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 377.
 AIR 2018 SC 4321.
 (2014) 5 SCC 438.
 Jolly, Stellina, et. al. (eds.), “Recognition of Foreign Same-Sex Marriage in India: A Legal Exploratory Analysis” 59 JILI 320 (2017).
 Kavita Arora & Anr. v. UOI & Anr., available at: https://www.reddyandreddy.org/wp-content/uploads/2020/10/Dr-Kavita-Arora-and-Anr-v.-UOI.pdf (last visited on June 06, 2021).