BEFORE HONORABLE SUPREME COURT OF INDIA

ORIGINAL WRIT JURISDICTION

FRIENDS OF LGBT AND ANOTHER……………………….........…… PETITIONER

V.

UNION OF INDIA……………………………………………..............….. RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUDGES OF THE HON’BLE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

1. List of abbreviations

2. Index of Authorities

3. Synopsis

4. Statement of Jurisdiction

5. Statement of Facts

6. Statement of Issues

7. Summary of Arguments

8. Arguments advanced

9. Prayer
 LIST OF ABBREVIATION

SM Act Special Marriage Act 1954

i.e Id est. “That is”

Cr.lj Criminal Law Journal

SCC Supreme Court case

SCR Supreme Court report

ILR Indian Law Report

ASA American Sociological Association

AIR All India Report

Fr. Father

St. Saint

J. Justice

v. Versus

r/w Read with

& And

Ors. Others

Anr. Another

IVF In-Vitro Fertilization

PIL Public Interest Litigation

SC Supreme Court

Sec. Section

WP Writ Petition

DLT Delhi Law Times

Ltd. Limited

LGBT Lesbian Gay Bisexual Transgender

Raj. Rajasthan

MO Marriage Officer

Mad. Madras

US United States of America

UOI Union of India

U/s Under section

Govt. Government
INDEX OF AUTHORITIES.

 National Legal Service Authority v. Union of India [2014 5 SCC 438]

 Navjet Singh Johar & Ors. v. Union of India thr. Secretary of Ministry of Law and
 Justice [2003 AIR SCC 3397]
 Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287
 Rusom Cavasiee Cooper v. Union of India [1970 1 SCC 248]
 Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488]
 M/S Grasim Industries Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397]
 The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84]
 R.S Nayak v A. R Anutley [1984 AIR 684]
 Raisa Begum and Ors. V. State of Uttar Pradesh and Ors. [1995 Crlj 1067]
SYNOPSIS

Anersi and Berni, two female Law students from Shakipur in the state of rangasthan were
living together as spouses. They decided to get married and notified to the marriage officer of

Shakipur North. On publishing notice as per Special marriage Act, one Fr.Samuels Objected

under Section 8 of the Act for the noncompliance by the couple of Section 4 clause C of the

Act. Anershi and Bernie filed a writ petition in this court under article 32 for issuance of writ

of mandamus against the marriage officer of Shakipur. Another community LGBT also has

filed a PIL in concern with the same issue under article 32 of Indian Constitution. The court

has decided to hear both the petitions jointly.

WRIT PETITION FILED BEFORE THIS HONOURABLE COURT

Petitoner 1 …….. Anershi

Petitioner 2 …… Berni

Petitioner 3 …… Friends of LGBT

V.

Respondent 1 …….. Union of India

Respondent 2 ……. State of Rangasthan

Respondent 3 ……. Marriage Officer

Respondent 4 ……. Father Samuel.

STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction in this matter under Article 32

of the Constitution of India which reads as follows:

“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 Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including

writs in the 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.”

STATEMENT OF FACTS

1. The respondents are aggrieved with the approach of the petitioners to this honourable

court without availing or using their alternative remedies available to them in such

circumstances.

2. Petitioners 1 and 2 are two major Indian citizens of female gender pursuing final year

of LLB from Mangala Law College in the capital city of Shakipur of Rangasthan.

Petitioners were in love and lived together for past 6 months as spouses. The petitioner

in need to legalise their relationship for to be recognized as spouses by law and exercise

their right as any other Indian married couple, approached respondent 3 on 30.10.2018

and submitted notice under section 5 of the Special Marriage Act, 1954.

3. Petitioners 1 and 2 had not satisfied all the conditions necessary to solemnize marriage

under section 4 and respondent 3 notified their marriage as required under of Special

Marriage Act. During this notice period, respondent a Vicar of a Catholic Church, filed
an objection under section 7 of the same act to the notice filed by marriage officer in

uniting the petitioner 1 and 2.

4. The objection by respondent 4 was accepted by the marriage officer , that the union of

the petitioner 1 and 2 is in violation of Section 4 clause C of the Special marriage act

which states “ the man shall be 21 years and the women shall be 18 years”

5. Along with respondents 4, submission to the Notice to Marriage, he also added 7

reasons to the marriage officer in support of his objection to same sex marriage.

6. Respondent 4 stated in his objection statement 1, that homosexual couples using in vitro

fertilization (IVF) or surrogate mothers will create a class of children who will live

apart from their mother or father.

7. In his objection statement 2, that same-sex civil marriage in becoming common would

result in the children being lesbian couples.

8. Statement 3 in the objection by respondent 4 that same sex civil marriage would deny

the children of their mother.

9. Respondent 4, in context to a statement "lesbian parenting may free daughters and sons

from a broad but uneven range of traditional gender prescriptions." made by Judith

Stacey.

10. In Respondent 4 , statement 5 is quoted from the book “self-defence of same sex-

marriage”, happily same sex married Andrew Sullivan words, "There is more likely to

be greater understanding of the need for extramarital outlets between two men than

between a man and a woman." concludes that sexual fidelity exists more in same sex

marriage.

11. Respondent 4 in his 6th statement contended that same sex marriage would isolate
marriage from its procreative purpose.

12. Respondent 4 in his 7th statement to support his objection is that same-sex "marriage"

would further diminish the expectation of paternal commitment and marriages thrive

when spouses specialize in gender-typical roles

13. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their

marriage, under the objection from respondent 4 accepted by respondent 3.

14. The Petitioners 1 and 2 Honourable court by invoking jurisdiction under Article 32 of

Constitution of India. Petitioner 3 on behalf of LGBT community filed a PIL before

this honourable court under article 32 seeking intervention of this court.

15. (6). Same-sex "marriage" would further isolate marriage from its procreative purpose.

Traditionally, marriage and procreation have been tightly connected to one another.

Indeed, from a sociological perspective, the primary purpose that marriage serves is to

secure a mother and father for each child who is born into a society. Now, however,

many Westerners see marriage in primarily emotional terms. Among other things, the

danger with this mentality is that it fosters an anti-nationalist mind-set that fuels

population decline, which in turn puts tremendous social, political, and economic

strains on the larger society. Same-sex marriage would only further undercut the

procreative norm long associated with marriage.

(7). Same-sex "marriage" would further diminish the expectation of paternal

commitment. Marriages thrive when spouses specialize in gender-typical roles. If same-

sex civil marriage is institutionalized, our society would take yet another step down the

road of de-gendering marriage. There would be more use of gender-neutral language

like "partners" and--more importantly--more social and cultural pressures to neuter our
thinking and our behaviours in marriage.

16. On 4.12.2018, it was communicated to the petitioners that they cannot solemnize their

marriage under the objection from Fr. Samuel and it would be against the social interest.

17. On 11.12.2008, the couple filed a petition before the Supreme Court of India under

Article 32 of the Constitution challenging the validity of the decision of the Marriage

Officer without availing other alternative remedies available to them.

STATEMENTS OF ISSUES

A. Whether PIL filed by petitioner 3 is maintainable?

B. Whether sexual orientation is in violation of Article 14 and 21 of the Constitution of

India?

C. Whether writ of mandamus can be issued against the marriage officer?

SUMMARY OF ARGUMENTS.

A. Whether PIL filed by petitioner 3 is maintainable?

Considering the guidelines given by Supreme Court in different cases, a PIL that is filed

for publicity and to gain spiteful attention cannot be maintained in this Honourable

Court and may be dismissed with exemplary costs. Direction cannot be issued to the

union government to formulate laws or to amend the special marriage act as the court

has observed in various cases that judiciary has to power to review the law but has no

power to formulate new laws. Direction may be provided to all marriage officers to

perform their duty. But not for the Marriage officers to perform a duty contrary to the

statute that they were created under unless the legislature deems fit to make such

amendments.

B. Whether sexual orientation is in violation of Article 14 and 21 of the Constitution

of India?

Such sexual orientation is needed to be restricted, which is a part of the reasonable

classification which is to protect the community from the society as there shall be no

room for contaminating the pious purpose and sanctity of marriage.

C. Whether writ of mandamus can be issued against the marriage officer?

The Marriage Officer falls in the definition of State. But writ of mandamus is issued

only when that person does not perform his statutory date. Objection filed by Fr. Samuel

had to be accepted to which the marriage officer came to conclusion that such marriage

would be illegal.
ARGUMENTS ADVANCED

A. PIL maintained by petitioner 5 is not maintainable before this court.

Ø PIL filed was a mere publicity.

1. The LGBT community is a combination of Lesbian, Gay, Bisexual and

Transgender. The only class that is economically disadvantaged could be said to be

the transgender’s who are now been provided a third gender.

2. We submit that, in case of NALSA1, the Supreme Court has provided directions to

the union government and state government to include transgender as third gender

to avail equal opportunities in education and jobs. The court had decided that the

issue relating to the marriage and matrimonial of the third is left to the union

government to frame rules when it thinks deem fit.

3. We submit that, the other classes other than transgender are not economically

disadvantaged and most of them still want to remain discreet and hold their

relationship even after the decriminalisation of sec 377. The persons whose

fundamental rights are alleged to be infringed are already before this court in the

matter of Anershi and Anr v State of Rangasthan.

4. We submit that, taking the above in account it is to be understood that such PIL was

not filed for the disadvantaged but is ill advised and a mere attempt for publicity. A

PIL for publicity is intended to be for personal benefit.

“no petition involving indivisual/personal matter shall be entertained as a PIL

matter”2 .

Ø Directions may not be given to the union government.

1. National Legal Service Authority v. Union of India [2014 5 SCC 438] 2. Supreme Court of
India Guidelines to file PIL

5. We submit, the Supreme Court has already given a slew of directions to the

government regarding the person status and inclusion of third gender in various

aspects. In the previous case and in Navjet singh, the Supreme Court decided it.

“…..only recognizes the private rights but would not extend it to civil rights”3

And

“ ..for marriage it is left to the union government to form when it feels deemed to

fit in”4

6. It is submitted that. wherein a prayer was made before this Court to issue directions

for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a

person may be debarred from simultaneously holding two elected offices, namely,

that of a Member of the Legislative Assembly and also of a Mayor of a Municipal

Corporation. Repelling the said submission, the Court held:

"In our opinion, this is a matter of policy for the elected representatives of

people to decide and no direction in this regard can be issued by the Court.”5

7. It is contended that, in this context, it is fruitful to refer to the authority in, wherein

it has been expressed :

"It is again not for this Court to consider the relative merits of the different

political theories or economic policies... This Court has the power to strike

down a law on the ground of want of authority, but the Court will not sit in

appeal over the policy of Parliament in enacting a law".6

3. Navjet Singh Johar & Ors. v. Union of India thr. Secretary of Ministry of Law and Justice
[2003 AIR SCC 3397] 4. National Legal Service Authority v. Union of India [2014 5 SCC
438] 5. Suresh Seth v. Commr., Indore Municipal Corporation : (2005) 13 SCC 287 6.
Rusom Cavasiee Cooper v. Union of India [1970 1 SCC 248]

As can be seen from the extracted portion of the said judgment, in Supreme Court

Employees Welfare Association7, it was categorically held that no court can direct

a legislature to enact a particular law.

8. It is submitted that , what constitutes social reform is for the legislature to decide

the same, as they hold the closest hand towards the society.

“ … the will expressed by the legislature, constituted by the chosen

representatives of the people in a democracy, who are supposed to be

responsible for the welfare of the state, is the will of the people and if they lay

down a policy which am state should pursue such as legislature in its wisdom

fells it be deemed fit”8

9. It is submitted that, it is crystal clear about the intention and objective of the

legislature formulating such act for solemnization of marriage who don’t fall under

the traditional personal laws. Such unambiguous law may not be directed for

amendments in the act.

“where the words are clear and there is no obscurity and there is no ambiguity

and the intention of the legislature is clearly conveyed, there is no scope for

court to take upon itself the task of amending or altering the statutory

provisions”9

10. It is further submitted that, Directions cannot be given to the union government for

this particular as it regards private law and so hence the due to the forgave reasons
the PIL is not maintainable in this Honourable Court.

7. Supreme Court Employees Welfare Association v. Union of India [1989 SCR (3) 488] 8.
The State of Bombay v. Narasu Appa Mali [1952 AIR Bom 84] 9 . M/S Grasim Industries
Ltd. V. Collector of Customs, Bombay [2003 AIR SC 3397]

11. It is submitted that, the PIL was unmerited, unwarranted and ill- advised which

invariably wasted this courts time and the honourable court may dismiss this

petition with exemplary costs.

B. Discrimination based on sexual orientation is not in violation of Article 21 and

14 of the Constitution.

Ø Jurisprudence on sexual orientation

1. We submit that, the rejection of same sex marriage is to contend that homosexuality

fails to correspond with the basic definition of marriage.

First, that the genital union of the homosexual couples cannot actualise the

marital good,

Second, that homosexual intercourse instead of unifying the couple, intensifies

their separate individuality thus is unnatural to marriage.

2. We submit that, the conjugal version of marriage involves both mind and body. The

civil union, as two spouses of different sexuality are w put together, is the

“Procreative significance” this bodily union

“can actualize and allow them to experience their real common good,

parenthood and friendship”10

3. It is denied that, homosexual couples entering into civil will not be able to exercise
conjugal rights applied to heterosexual couples. The intercourse between two

homosexual spouses is simply the attempt for pleasure, instead attached any moral

values of marriage.

10. Page 10, Law of morality and sexual orientation, John Finnis.

” Choosing this act of intercourse with my spouse not for the sake of

pleasurably actualizing and expressing marital commitment but solely for

pleasure”11

4. It is submitted, Aristotle claims that

“Constituent parts of the natural universe were interpreted as tending towards

the actualization of the ends which defined their essential reality”12.

In other words, nature has engineered its traits as human character, which we ought

to follow.

Viewed by both theological jurisprudence and natural law, homosexual orientation

is solely the

“Extrinsic instruments of sexual satisfaction and expression”13.

5. It is contended that, allowing same sex marriage will contribute to the breakdown

of the family unit in society. The end result would be more single parent families

and more instability in the lives of children. It is further submitted that, that

homosexual unions can be classed more or less with polygamy.

6. It is submitted that, although the number of child adoption may increase as a result

of the legislation of gay marriage, that is not necessarily a good thing to the society

overall as it is recognized that children under straight households is the optimum

environment to raise children.14

7. It is submitted that, same sex marriage would destroy the institution as with the

rapidly increasing single parent family and divorce rate over the decade, has already

weakened the true meaning of marriage15.

11. Page 24, Law of morality and sexual orientation, John Finnis. 12. the defence of Natural
law, Charles cowell,st.martins press, 1992 13. the meaning of marriage, spence publishing
company 2006)

14. Dr.Krause, 2010 15. Messereli 2009

8. It is submitted that, supporters for same sex marriage claim that it does no harm to

the society, but changing the definition of marriage would lead to a slippery slope

to the society.

9. It is submitted that, since time immemorial, same sex marriages weren’t allowed in

the country and it was highly opposed by the people. As we forward, the custom

still prevails

10. It is submitted, that state restricting same sex marriage will restrain a person from

impious exploration of bigamy and polyandry as the sanctity of marriage is still

defined in the same medium.

C. Writ of Mandamus cannot be issued against the Marriage officer.

Ø Interpretation of section 4(c) os special marriage act

1. It is submitted that the legislative has a crystal clear objective on whom special marriage

act is applicable to when the respondent 1 made such laws, it is incumbent marriages

of inter-cast and inter-faith.

2. It is contended, that section 4(c) of the act states that “ the man has completed the age

of twenty-one years and the female the age of eighteen years” which explicitly states

that the parties to a marriage one shall be a male and the other shall be a female.

3. It is submitted that, the word “the” is emphasised to not provide any exhaustive

definition to the condition and rather definite meaning to the couple to be of opposite

sex.

“if the language is clear and unambiguous, no need for interpretation

would arise” 16.

16. R.S. Nayak v. A.R. Anutley [1984 AIR 684]

4. It is submitted that a set of statements were notified to the respondent 3 on objection

from and by respondent 4. The statements are true and are made in context to save the

sanctity and the objective of a marriage.

5. It is submitted that, the objection from respondent 4 was accepted by the Marriage

officer under section 7 of the Special Marriage Act. The compliance of his duty to the

statute was performed and no mandamus may be filed to prevent him from doing such

duty.

6. It is submitted that, the petitioner has no legal right to compel the performance of that

public duty to the public officer to refrain from doing that duty.

“Its function is to compel the performance of a present existing duty as to

which there is default’

And further states that

“It is not granted to take effect prospectively and it contemplates the

performance of an act which is incumbent on respondent when an

application for a writ is made”17

7. It is submitted that, the Allahabad high court had held that certain conditions have to

be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus

must show that he has a legal right to compel the respondent to do or abstain from doing

something.

“….. there must in a petitioner a right to compel performance of some duty

cast on respondents”.18

17. 18 . Raisa Begum and Ors. V. State of Uttar Pradesh and Ors. [1995 Crlj 1067]

8. It is submitted that, no such duty to solemnize the marriage of parties violating rules

under section 4 is available and the writ of mandamus may not be issued to the

respondent 3 to solemnize the marriage of petitioner 1 and 2.

PRAYER

1. The PIL filed by petitioner 3 be dismissed imposing exemplary cost to discourage ill-

advised petitions.

2. Discrimination based on sexual orientatrion is a reasonable restriction and not in

violation of article 14 and 21.

3. The writ of Mandamus may not be issued against the respondent 3 from the petition

from petitioner 1 and 2.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENT