VG03_Petitioner

M.K.E.
S 8TH NATIONAL MOOT COURT COMPETITION 2024 - VIDHIGYAAN
TEAM CODE:V3
BEFORE THE HON’BLE SUPREME COURT of INDICA

___________________________________________________________________________
PUBLIC INTEREST LITIGATION
ORIGINAL WRIT JURISDICTION

_________________________________________________________________________
W.P.(CIVIL)NO. __ of 2024
UNDER ARTICLE 32 OF THE CONSTITUTION OF UNION OF INDICA
__________________________________________________________________________
IN THE MATTER OF:
RANG SAMRIDDHI NYAS..………………………………..………….…..PETITIONER
VERSUS
UNION OF INDICA………...……………...…………………….………RESPONDENTS
Most Respectfully Submitted to the Hon’ble Supreme Court of Indica
___________________________________________________________________________
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
Counsel for the Petitioner Petitioner
Sd/-(Signature) Sd/-
__________________________________________
i
MEMORIAL ON BEHALF OF PETITIONERS
M.K.E.S 8TH NATIONAL MOOT COURT COMPETITION 2024 - VIDHIGYAAN
TABLE OF CONTENTS
Sl no. CONTENT PAGE

NUMBER
1 LIST OF ABBREVIATIONS iii
2 INDEX OF AUTHORITIES iv-v

 BOOKS
 DICTIONARY
 ARTICLES
 LEGAL DATABASES
3 TABLE OF CASES vi-vii
3 STATEMENT OF JURISDICTION viii
4 STATEMENT OF FACTS ix
5 STATEMENT OF ISSUES X
6 SUMMARY OF ARGUMENTS xi
7 ARGUMENTS ADVANCED 1-28
1. WHETEHR THE MATTER IS ADMISSIBLE IN 1-11

SUPREME COURT OF INDICA?
2. WHETHER THE MARRIAGE LAWS IN INDICA ARE 12-21

VIOLATIVE OF FUNDAMENTAL RIGHTS OF SAME
SEX COUPLES?
3. WHETHER THE ADOPTION LAWS IN INDICA ARE 22-28

VIOLATIVE OF FUNDAMENTAL RIGHTS OF SAME
SEX COUPLES?
8 PRAYER 29
ii
LIST OF ABBREVATIONS
& And
UOI Union of India
Hon’ble Honourable
Art. Article
Sec Section
Pg. Page
Govt. Government
No. Number
i.e, That is
Ltd. Limited
SCI Supreme Court of India
u/s Under section
Vol. Volume
V. Versus
Ed. Edition
SCC Supreme Court Cases
AIR All India Report
SCR Supreme Court Report
u/a Under Article
ICCR International Convention for Child Rights
SMA Special Marriage Act 1954
FMA Foreign Marriage Act 1969
PMDA Parsi Marriage And Divorce Act 1936
HMA Hindu Marriage Act 1956
UDHR Universal Declaration of Human Rights

IPC Indian Penal Code 1860
CARA Central Adoption Resource authority
NGO Non Governmental Organisation
PIL Public Interest Litigation
iii
INDEX OF AUTHORITIIES
BOOKS REFERRED:
i. ABHE SINGH YADAV, “LAW OF WRITS; JURISDICTION AND ITS
EFFICIENCY”, UNIVERSAL LAW PUBLISHING AND COMPANY, 1ST
2009
ii. ALL INDIA REPORTS.
iii. D.D. BASU: “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH EDN.
(2009)
iv. D.D. BASU: “SHORTER CONSTITUTION OF INDIA”, PRENTICE HALL OF
INDIA PVT. LTD., NEW DELHI, 12TH EDN.
v. DR. J.N. PANDEY, “CONSTITUTIONAL LAW OF INDIA”, CENTRAL LAW
AGENCY, 51TH EDN. (2013)
vi. DR. L.M. SHINGHVI, “CONSTITUTION OF INDIA”, THOMSON REUTERS,
NEW DELHI, VOL.2, 3RD EDN., 2013
vii. H.M. SEERVAI, “CONSTITUTIONAL LAW OF INDIA”, UNIVERSAL LAW
PUBLICATION, 25TH EDN. (REP 2012)
viii. J.C. JOHARI, “THE CONSTITUTION OF INDIA”, N.M. TRIPATHI PVT. LTD.,
BOMBAY, 4TH EDN.
ix. JAIN M.P., “INDIAN CONSTITUTIONAL LAW”, WADHWA AND COMPANY,
NAGPUR, 5TH EDN. (REP.2005)
x. MADHUSUDAN SAHARAY, “LAW OF WRITS”, PREMIER PUBLISHING CO.,
(2009).
xi. P.M. BAKSHI, “THE CONSTITUTION OF INDIA”, UNIVERSAL LAW
PUBLISHING CO. PVT. LTD., 9TH EDN.
xii. P.M. BAKSHI, JASWANT SINGH, DEEPAK ARORA, “THE CONSTITUTION OF
INDIA” VOL. I AND VOL. II., MADRAS JOURNAL LAW OFFICE, MADRAS.
xiii. SUPREME COURT CASES.
xiv. V.N. SHUKLA, “CONSTITUTION OF INDIA”, EASTERN BOOK COMPANY,
iv
12TH EDN. (2013)

DICTIONARIES AND LAW LEXICONS:
1. BLACK HENRY CAMPBELL, BLACK ' S LAW DICTIONARY 6TH ED., 1990
2. BURTON WILLIAM C, LEGAL THESAURUS, 2ND ED., 1992
3. GARNER BRYAN, BLACK ' LAW DICTIONARY, 7TH ED
4. GARNER BRYAN, MODERN LEGAL USAGE, 1991
5. PRAMANATHA'S AIYER'S, "LAW LEXICON", 2ND ED., 1997
6. THE OXFORD ADVANCED LEARNER DICTIONARY, 6TH ED. 2003
7. WHARTON, LAW LEXICON, 14TH ED. 1993
STATUTES REFERRED:
1. CONSTITUTION OF INDIA, 1950
2. SPECIAL MARRIAGE ACT 1954
3. FOREIGN MARRIAGE ACT 1969
4. PARSI MARRIAGE AND DIVORCS ACT 1936
5. HINDU MARRIAGE ACT 1955
6. INDIAN PENAL CODE 1860
LIST OF WEBSITES REFERRED:
• http://www.cdjlawjournal.com
• http://www.ebc-india.com
• http://www.indiankanoon.org
• http://www.judisnic.in
• http://www.lawlex.org
• http://www.legalindia.in
• http://www.lexisite.com
• http://www.livelaw.com
• http://www.manupatra.com
• http://scconline.com
• http://www.barandbench.com/
v
TABLE OF CASES
Sl.no CASES CITATION
1. People’s Union for Democratic Rights & 1982 AIR

Ors v. Union of India & Others 1473,1983 SCR (1)
456
2. State of West Bengal v. Committee for the (2010) 3 SCC 571
Protection of Democratic Rights
3. S. P. Gupta vs. Union of India AIR 1982 SC 149
4. Janata Dal vs. H. S. Chowdhary AIR 1993 SC 892
5. Mumbai Kamgar Sabha, Bombay vs. Abdul (1996) 3 SCC 832
Bhai Faizullabhai and Ors
6. Shayara Bano vs. Union of India (2017) 9 SCC 1
7. Maneka Gandhi vs. Union of India (1978) 1 SCC 248
8. Patan Jamal Vali vs. The State Of Andhra AIR 2021 SC 2190
Pradesh
9. Navtej Singh Johar vs. Union of India (2018) 10 SCC 1
10. Ashok kumar pandey V. State of West (2004) 3 SCC 349
Bengal
11. Rubinder Singh V. Union Of India 1983 SC 65
12. Joseph Shine v. Union of India (2019) 3 SCC 39
13. Sri Srinivasa Theatre v. Government of 1992 SCC (2) 643
Tamil Nadu
14. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75
15. Lata Singh v Union of India (2006) 5 SCC 475
16. Justice KS Puttaswamy v. Union of India (2018) 1 SCC 809
17. Shakti Vahini v. Union of India (2018) 7 SCC 192
18. Shafin Jahan v. K.M. Asokan 2017 (10) SCC 1
19. Laxmibai Chandaragi B. v. State of AIRONLINE 2021

Karnataka SC 47
20. Olga Tellis and Ors V. Bombay Municipal 1985 SCC(3) 545
Corporation and O
21. D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469
22. Cursetjee v. Perozeboy 1856 SCC OnLine
PC 6
vi
23. NALSA v. Union Of India (2014) 5 SCC 438

24. Asha Ranjan v. State of Bihar AIR SC 1079
25. Santhosh Kumar Satishbhushan Bariyar v. (2009) 6 SCC 498
State of Maharashtra
26. Calcutta Electricity Supply Corporation AIR 1992 SC 573
(India) Ltd. V. Subhash Chandra Bose
27. District Registrar and Collector v. Canara (2005) 1 SCC 496
Bank
28. Indra Sarma v. VK Sarma AIR 2014 SC 309
29. Sandro Gomez v. CARA & Anr WP No. 1305 of
2015
30. Deepika Singh v. Central Administrative 2022 SCC OnLine

Tribunal SC 1088
31. Laxmi Kant Pandey v. UOI 1984 AIR 469

32. Indian Hotel and Catering Association and 2019 (3) SCC 429
Anr. V State of Maharashtra
33. Rashid Ahmad v. Municipal Board 1950 SCR 566
34. Saraswati Industrial Syndicate v. Union of 1975 AIR 460
India
35. Suresh Kumar Kaushal v. Naz Foundation (2014) SCC 1
and Ors
vii
STATEMENT OF JURISDICTION
The Writ Petition has been filed invoking the writ jurisdiction of the Hon’ble Supreme Court
of Indica under Article 32 of the Constitution of Indica 1.
The right to move to the Supreme Court by appropriate proceedings for the enforcement of
the
rights conferred by Part III is guaranteed.
Wherein, Article 32 reads as under:
32. 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.
(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.
1. Constitution of Indica is in pari materia with the Constitution of India, herein after referred to as
“The Constitution”
viii
STATEMENT OF FACTS
The Union of Indica is a megadiverse country which houses 1.417 billion people with
multiple religious beliefs. Following Indica’s independence in 1947, British colonial laws
criminalizing homosexuality remained in place and the LGBTQ+ community by the early
1990’s began to organize and advocate for their rights and still faced discrimination and
stigma. The evolving society soon adopted a newfound sense of understanding, tolerance and
mutual respect towards the community. Several State Governments attempted to promote
egalitarianism with respect to LGBTQ+ rights, opportunities and general acceptance towards
them.
The Hon’ble Supreme Court legally recognised non binary or transgender person as “third
gender” and later made an individual’s sexual orientation an essential attribute of privacy in
2014 and in 2018 struck down section 377 of the Indican penal code decriminalizing
consensual sexual acts between same sex individuals. However, it was realised that
recognition is not a solution to their problems. Right to marriage which was fundamental or
constitutional right which was interpreted by courts that freedom of choice in marriage was
an inherent aspect of Article 21 of the Constitution was illusory for same sex couples. The
issue of same sex marriage has been a contentious one as it lacks “legal stamp of marriage”.
While some people and organizations have been advocating for the legalization of same sex
marriages and the recognition of LGBTQ+ rights others have been opposing it citing
religious, cultural and traditional reasons.
In 2023, an NGO named “Rang Samriddhi Nyas,” filed a PPIL in the Hon’ble Supreme Court
seeking the grant for legal status of same sex marriages and adoption rights for same sex
couples. The matter is now listed before the Hon’ble Supreme Court of Indica for hearing the
question pertaining to same sex marriage and adoption rights for same sex couple have been
raised de novo before this Hon’ble Court.
ix
STATEMENT OF ISSUES
ISSUE 1
WHETHER THE MATTER IS ADMISSIBLE IN THE SUPREME COURT OF
INDICA?
ISSUE II
WHETHER THE MARRIAGE LAWS ARE VIOLATIVE OF FUNDAMENTAL

RIGHTS OF SAME SEX COUPLES?
ISSUE III
WHETHER THE ADOPTION LAWS IN INDICA ARE VIOLATIVE OF

FUNDAMENTAL RIGHTS OF SAME SEX COUPLES
x
SUMMARY OF ARGUMENTS
ISSUE 1
INDICA?
It is most humbly submitted before the hon’ble Supreme Court that the matter is admissible
in the hon’ble Supreme Court as the Fundamental Rights of the same sex couples enshrined
in Article 14,15, 19 and 21 of the Constitution of Indica are being violated and thus they have
the locus standi to demand for the same. Public Interest Litigation means a legal action
initiated in a court of law for the enforcements of Public Interest or general interest in which
the public or class of the community have pecuniary interest or some interest by which their
legal rights or liabilities are affected.
ISSUE II
WHETHER THE MARRIAGE LAWS ARE VIOLATIVE OF FUNDAMENTAL

RIGHTS OF SAME SEX COUPLES?
It is most humbly submitted before the Hon’ble Supreme Court that the marriage laws are
violative of the Fundamental Rights of same sex couples as there is clear exclusion of same
sex couples which is discriminatory in nature which eventually violates Articles 14, 15,19(1)a
and 21 of the Constitution of Indica. There is a absence of legal recognition of marriage of
the same sex couples
ISSUE III

FUNDAMENTAL RIGHTS OF SAME SEX COUPLES?
It is most humbly submitted before the Hon’ble Supreme Court of Indica that the Existing
adoption laws in Indica are violative of the Fundamental Rights of the Same sex couples. It is
also submitted that the adoption laws violate the right to equality guaranteed under Article 14
of the Constitution of Indica. The existing legal framework of the Adoption laws in Indica are
violative of Article 15 of the Constitution as the legislations do not satisfy the conditions for
reasonable classification and hence are abrogative of Constitutional rights and values.
xi
ARGUMENTS ADVANCED
ISSUE 1
INDICA?
It is humbly submitted before the Supreme court that the matter is admissible as there is a
clear violation of fundamental rights and the matter is of public interest. The term Public
Interest Litigation is composed of two words; ‘Public Interest’ and ‘Litigation’. This basically
means that something in which the general public or the community at large has pecuniary
interest where their legal rights or liabilities are affected and a legal action involving all the
legal proceedings would be initiated in the court of law with the purpose of enforcing a right
or seeking a remedy. Therein it denotes to be a legal action initiated in a court of law for the
enforcement of the Public Interest where the rights of a group have been affected.
As in for this instance the interest of the large group has been affected. Fundamental rights
are denied. A certain group of persons known as the same sex couples have been excluded
just based on their sexual orientation. Just because they aren’t a certain group they are denied
of marital or adoptive rights. Marriage is a form of expression. The state shows its
arbitrariness by letting only heterosexual couple marry and have adoption rights and deny the
same for the other group only based on sexual orientation.
In People’s Union for Democratic Rights & Ors v. Union of India & Others2, the court said,
“ Public interest litigation is brought before the court not for the purpose of enforcing the
right of one individual against another as happens in the case of ordinary litigation, but itis
intended to promote and indicate public interest which demands that violations of
constitutional or legal rights of large number of people who are poor, ignorant or in a socially
or economically disadvantaged position should not go unnoticed and unredressed. That would
be destructive of the Rule of Law which forms one of the essential elements of public interest
in any democratic form of Government.”
Democracy increases tolerance by exposing residents to new perspectives. Democracy also

encourages people to respect individuals’ rights, regardless of whether they personally like
the people being protected. Freedom of speech also allows residents to protest and not be
2
1982 AIR 1473,1983 SCR (1) 456
MEMORIAL ON BEHALF OF PETITIONERS 1

arrested. When residents feel that they can freely express their ideas, they become even more
inclined to speak up for themselves and others. This leads to more tolerance.
The Hon’ble Court in several cases have stepped in when there is a legislative or executive
vacuum to protect and advance the Fundamental rights of the citizens of this country.
Ubi Jus Ibi Remedium which means where there is a right there is a remedy. LGBTQ have a
fundamental right to choose their partner to marry and have a valid solemnisation as every
human being has this right.
The constitutional morality cannot be superseded by social morality peoples non acceptance
towards homosexuality is no reason for setting aside the constitutional guarantee provided to
them under part III of constitution of Indica. Sexual orientation of the LGBTQ persons is not
just integral to intimate life but also impacts their family, professional, social and economic
life. The right to choose a life partner is aspect of individual liberty immune from the social
standardisation that the society has set. The petitioners here are seeking realisation of its basic
right to companionship and that particular companionship should be consensual free from the
vice of deceit , force, coercion and should not violate the fundamental rights of themselves.
The LGBTQ community possess the same human, fundamental and constitutional rights as
any other citizens do since these rights are inherent in individuals as natural and human
rights. The organization of intimate relations is a matter of complete personal choice
especially between consenting adults.
The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s
population cannot be a ground to deprive them of their Fundamental Rights guaranteed by
Part III of the Constitution. Ancient Indian texts, inscriptions and paintings on temple walls,
clearly, acknowledge its existence in those days. Some of the instances are:
1. In the temples of Khajuraho, there are images of women erotically embracing other
women and men displaying their genitals to each other. Scholars have generally
explained this as an acknowledgement that people engaged in homosexual acts.
2. In the Valmiki Ramayana, Lord Rama's devotee and companion Hanuman is said to
have seen Rakshasa women kissing and embracing other women.
3. The Ramayana tells the tale of a king named Dilip, who had two wives. He died
without leaving an heir. The story says that Lord Shiva appeared in the dreams of the
widowed queens and told them that if they made love to each other, they would have
a child. The queens did as ordained by Lord Shiva and one of them got pregnant.

They gave birth to a child, who went on to become famous king Bhagirath, best
known for "having brought River Ganga from heaven to the earth".
4. The Mahabharata has an interesting story about Shikhandini, the feminine or
transgender warrior of the time and responsible for the defeat and killing of Bhishma.
Shikhandini was a daughter of King Drupada, who raised her as a prince to take
revenge from the Kurus, the rulers of Hastinapur. Drupada even got Shikhandini
married to a woman after her wife discovered the reality.
I.1. LOCUS STANDI
It is humbly submitted that the petitioners seek Article 32 as the locus standi for approaching
this hon’ble Supreme Court. Article 13(2) of the Constitution provides that any law, which
takes away or abridges fundamental rights is void, to the extent of the contravention. In the
State of West Bengal v. Committee for the Protection of Democratic Rights3, this Hon'ble
Court held:
The Constitution of India expressly confers the power of judicial review on this Court and
the High Courts under Article 32 and 226 respectively. Dr. B.R. Ambedkar described Article
32 as the very soul of the Constitution- the very heart of it the most important Article...
Moreover, Article 13 of the Constitution not only declares the pre- constitution laws as void
to the extent to which they are inconsistent with the fundamental rights, it also prohibits the
State from making a law which either takes away totally or abrogates in part a fundamental
right". Article 32 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.
For the effective implementation of fundamental rights wider interpretation of such right
is required. Inaction on the part of the State equally infringes the fundamental rights as
overt action of the State does.
3
(2010) 3 SCC 571

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer.
One of the ground for the legality of issuing the writ of mandamus is the failure to act or
perform the legal duty despite being demanded by the applicant for the same. This was also
upheld by the Supreme Court in Saraswati Industrial Syndicate v. Union of India4.
In the case of Rashid Ahmad v. Municipal Board5, it was held that in relation to
Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the
issue of writ though the fact may be taken into consideration.
In S. P. Gupta vs. Union of India6, Justice P. N. Bhagawati articulated the concept of PIL as,
“any member of the public or social action group acting bona fide” can invoke the Writ
Jurisdiction of the High Courts (under Article 226) or the Supreme Court (under Article 32)
seeking redressal against violation of legal or constitutional rights of persons who due to
social or economic or any other disability cannot approach the Court.”
The court till date hasn’t neglected the violation of rights be it small or a larger group , the
court has always been upholding justice and has ensured that the rights of almost all the
people have been protected. In this instance it is humbly expected that the court would do the
same by protecting the rights of the individuals who are claiming the right.
In the case of Janata Dal vs. H. S. Chowdhary7, the Supreme Court held that “only a person
‘acting bona fide’ and ‘having sufficient public interest’ in the proceeding of Public Interest
Litigation will have alone the Locus Standi but not a person for personal gain or political
motive or any other oblique consideration”.
The petitioners in the instant case does not clearly have any personal gain or political motive
or any other oblique consideration. It is indeed a total interest of the people from LGBTQ
community.
Further, in Mumbai Kamgar Sabha, Bombay vs. Abdul Bhai Faizullabhai and Ors8, Justice
V. R Krishna Iyer rightfully held that the right to approach the courts when similar individual
4
1975 AIR 460
5
1950 SCR 163
6
AIR 1982 SC 149
7
AIR 1993 SC 892
8
(1996) 3 SCC 832

rights of several people are infringed is the appropriate remedy in our socio-economic
context.
Therin the rights of petitioners are infringed and are here to seek redressal from the hon’ble
court
Patan Jamal Vali vs. The State Of Andhra Pradesh9 before the Hon’ble Supreme Court,
discussed in length the difference between single-axis discrimination and intersectional
discrimination and specifically placed reliance on Navtej Singh Johar vs. Union of India10
which held that “the Court, as the final arbiter of the Constitution, has to keep in view the
necessities of the needy and the weaker sections. The role of the Court assumes further
importance when the class or community whose rights are in question are those who have
been the object of humiliation, discrimination, separation and violence by not only the State
and the society at large but also at the hands of their own family members. The development
of law cannot be a mute spectator to the struggle for the realisation and attainment of the
rights of such members of the society.”
The view of the weaker sections that is LGBTQ community is to be taken into consideration
as it is them who need a legal support at this point in order to have social acceptance. Taking
into view of them in the present scenario they do not have marriage or adoptive rights where
they are restrictive of what they can exercise as every human being does. It is evident that in
the present context there is intersectional discrimination where it is based upon the idea that
individuals habitually occupy multiple axis of oppression simultaneously and neither does it
come separately. Intersectional discrimination is what is seen here and therein is violative of
right to equality.
In Suresh Kumar Koushal V. Naz Foundation And Ors11, it was held that, “ it is a
fundamental principle of our Constitution that the role of judiciary is to protect the
fundamental rights. A modern democracy while based on the principle of majority rule
implicitly recognises the need to protect the fundamental views of those who may dissent or
deviate from the majoritarian view. It is the job of the judiciary to balance the principles
ensuring that the Government on the basis of number does not override fundamental rights.
9
AIR 2021 SC 2190
10
(2018) 10 SCC 1
11
(2014) SCC 1

Also to quote the words of Justice Krishna Iyer in Maneka Gandhi v. UOI, Justice Krishna
Iyer held as, “ the compulsion of Constitutional humanism and the assumption of full faith in
life and liberty cannot be so futile or fragmentary that any transient legislative majority in
tantrums against any minority, by 3 quick readings of a bill with the requisite quorum, can
prescribe any unreasonable modality and thereby sterlise the grandiloquent mandate.”
In the light of the above judgement it is clear that rights of LGBTQ+ community are being
overshadowed by the legislative actions of the State as the community comprises of sexual
minorities. The petitioners have approached the court for the court to exercise it’s powers for
the protection of the fundamental rights of the minority and helping them realise such rights.
In the case of Ashok kumar pandey V. State of West Bengal12, the rules of locus standi have
been relaxed and a person acting in a bonafide manner and having sufficient interest in the
proceedings of Public Interest Litigation will alone have the requisite locus standi and can
approach the Courts to wipe out any violation of Fundamental rights and genuine infraction
of statutory provisions, but not for personal gains or private profit or political motive, or any
oblique consideration.
In the present case it is the whole and soul intention of the petitioners to have protect the
fundamental rights of the same sex couples and this therefore is exclusively done in the
interest of the public at large. This maybe even stated as a class action and by neglecting
it would indeed seem like the interest of the group of community that has been ignored
and never in the history of our country the judiciary has ignored the individuals rights
whose rights have been affected.
I.2. VIOLATION OF FUNDAMENTAL RIGHTS
Fundamental rights in Indica are constitutional guarantees granted to citizens, ensuring the
protection of individual liberties and freedoms. These rights are enshrined in Part III (Articles
12 to 35) of the Indican Constitution. Violation of fundamental rights occurs when these
rights are encroached upon, either by state actions or private individuals or entities. It can
include instances of discrimination, unlawful arrests, censorship, forced labour, and other
actions that infringe upon the core liberties guaranteed by the Constitution. Legal remedies,
12
(2004) 3 SCC 349

including filing writ petitions in the higher courts, are available to individuals whose
fundamental rights are violated
I.2.1. ARTICLE 14 BEING NEGATED
Article 14 is two-fold in it’s nature providing; Equality before Law & Equal Protection of Law.
In the case of Rubinder Singh V. Union Of India13 the court held Rule of law requires that no
person shall be subjected to harsh, uncivilised or discriminatory treatment even when the object
is the securing of the paramount exigencies of law and order. In 2018, the Hon’ble court has in
the case, Navtej Singh Johar v. Union of India14 partially decriminalised Section 377 of
IPC,1860 i.e., consensual carnal intercourse among adults. It also held that “this (Intersectional
discrimination infringes Article 15 of the Constitution) formalistic interpretation of Article 15
would render the constitutional guarantee against discrimination.”
The discrimination made in the Act defeats the principles upheld in the aforementioned
judgment.t is well-settled that Article 14 envisages substantive equality, and not just formal
equality.
In Joseph Shine v. Union of India15, it was held: "In consonance with constitutional morality,
substantive equality is directed at eliminating individual, institutional and systemic
discrimination against disadvantaged groups which effectively undermines their full and equal
social, economic, political and cultural participation in society.
The primary enquiry to be undertaken by the Court towards the realization of substantive
equality is to determine whether the provision contributes to the subordination of a
disadvantaged group of individuals. The focus of such an approach is not simply on equal
treatment under the law, but rather on the real impact of the legislation."
In the case of Sri Srinivasa Theatre v. Government of Tamil Nadu 16

, it was held that the
expressions ‘equality before law’ and ‘equal protection of law’ do not carry the same meaning
though there is a lot in common between them. The word ‘law’ in the first expression was more
general in sense and in the second expression it was more specific. It was also observed that
‘equality before the law’ is a dynamic concept having multiple facets. And, one of the facets
denotes the absence of any privileged class or person who was above the law and the other
13
1983 SCC (1) 140
14
Ibid10
15
(2019) 3 SCC 39
16
1992 SCC (2) 643

denotes the obligation of the state to make the society more equal as envisaged in the Preamble
and Part IV of the Indian Constitution.
In the case of State of West Bengal v. Anwar Ali Sarkar 17

, it was held that the concept of
equal protection of law is simply a part of the concept of equality before law. When the ‘equal
protection of law’ is violated, it is difficult to imagine the ‘equality before law’ being
maintained in such a situation.
In the landmark judgment of Shayara Bano vs. Union of India,18 the Supreme Court held
that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the
equal protection of the law contained in Article 14 and would be struck down on this ground.
The states arbitrariness in the present case has been clearly shown as the laws that are relating
to marriage are violative if Fundamental Rights. Further, along with many other cases,
Maneka Gandhi vs. Union of India 19was also referred to where it was observed that
“Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment.”
In the instant case the court has clearly violated Article 14 as Article 14 strikes the
arbitrariness in state action and ensures fairness and equality of treatment as mentioned in the
above quoted cases.
The SMA & FMA requires a man and a woman to be considered as a couple and CARA requires
2 years of stable marriage which is violative of Article 14. These provisions discriminate
against homosexuals couples who are incapable of satisfying such conditions naturally and due
to absence of legal regime respectively. While there is intelligible differentia for the
classification of heterosexual and homosexual couples there isn’t any rational nexus between
such classification and the object and purpose of such laws.
I.2.2 NEGATION OF ARTICLE 15
Article 15 (1) states that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. Excluding LGBTQIA+ persons from
the SMA,FMA and CARA discriminates against them on the basis of their sexual orientation
and the sex of their partner. This violates Article 15 of the Constitution. Their right to form
17
AIR 1952 SC 75
18
(2017) 9 SCC 1
19
(1978) 1 SCC 248

civil unions in the form of marriage and to adopt a child are not recognised through express
legal regime which deprives them of their fundamental right to equality under Article 14 unlike
heterosexual couples. Discrimination on the grounds of sexual orientation by preventing same-
sex couples from solemnizing their marriages and from legally adopting children is present.
Article 15(1) of the Constitution prohibits discrimination on the grounds of sex, which
subsumes sexual orientation. The requirement in the SMA that a couple should consist of a
man and a woman is one which is based on ascriptive characteristics (attributes that are pre-
determined or designated by society or other external norms) and is an exclusion based on a
marker of identity
I.2.3 ARTICLE 21 BEING VIOLATED
Several rights under Article 21 such as the right to autonomy , right to choice, right to
privacy, right to social security, right to live with dignity and right to parenthood have been
violated.
In case of Lata Singh v Union of India,20 the SC held that the petitioner had the right to
choose the partner whom she wanted to marry and the law does not prohibit inter-caste
marriages.
It is ones right to choose a partner and the state cannot impose a restriction on making a
person chose the significant other to entail benefits that is recognition in the present context.
In Justice KS Puttaswamy v. Union of India21, while upholding the fundamental right to

privacy under Article 21, it was pointed out that vital personal choices related to marriage are
included within the ambit of privacy and dignity of an individual.
It is one’s own choice to choose a person of one’s own will and the laws that are enacted
should be flexible enough to those choices.
In Shakti Vahini v. Union of India 22also, the Apex Court adhered to this position. It held
that consensually choosing life partners is a manifestation of their freedom of choice
guaranteed under Articles 19 and 21 of the Constitution.
20
(2006) 5 SCC 475
21
(2018) 1 SCC 809
22
(2018) 7 SCC 192

A life partner is to be chosen by the individual and there is no need for a person to go against
one’s own sexual orientation just to get recognition as this could affect the mental health of
the significant other.
Consequently, in Shafin Jahan v. K.M. Asokan23, the Court stated that the right to marry the
person of one’s choice is a fundamental component of Article 21. This right cannot be
curtailed except through a law that is just and reasonable.
The court in so many cases has held that the right to marry includes the right to marry the
person of one’s choice which can be interpreted as the right to marry a person of choice
according to one’s sexual orientation.
In the Laxmibai Chandaragi B. v. State of Karnataka24 depended on Shafin Jahan to hold

that the right to marry a person of one’s choice is integral to Article 21.
In the case of Olga Tellis and Ors V. Bombay Municipal Corporation and Or25s held, Article
21 confers freedom of life and liberty, which does not merely amount to physical existence
but a qualitative and meaning life with dignity.
Inherent human dignity is a precondition of warranting the rights under Article 21 of the
constitution. Marriage right is crucial for relating individual dignity also for enjoying
meaningful human existence, therefore courts have interpreted marriage to be an important
right under Article 21 of the constitution. Although the right to marry according to ones own
will have been recognized as a fundamental right the current scenario doesn’t allow the
homosexual couple to exercise their rights. LGBTQ faces problems for exercising even their
most basic rights. The respondents have failed in guaranteeing them their fundamental right
of marriage.
I.3. NEED FOR AMENDMENT OF LAWS
There are some legislations in Indica that are violative of fundamental rights of the same sex
couples just by exclusion of them. Regulation 5, Adoption Regulations, 2022 enacted under
the Juvenile Justice (Care and Protection of Child) Act, 2015, stipulates only a married couple
or single individuals as eligible candidates for adoption. Hence disabling homosexual couples
23
2017 (10) SCC 1
24
AIRONLINE 2021 SC 47
25
1985 SCC (3) 545

from marrying would violate their right to parenthood which is enshrined under art.21 of the
constitution. These are the material benefits which the homosexual couples would be
deprived off, given in a circumstance comparing them with heterosexual couples. Intestate
succession under the Indian Succession Act,1925, Hindu Succession Act, 1956, as well as
Muslim personal law only covers relations by marriage, consanguinity, or adoption. Under
Section 56(2)(v) of the Income Tax Act, 1961, gifts made by a person to a spouse are exempt
from income tax. For instance, Section 80-D of the Income Tax Act, 1961 allows an assessee
to deduct expenditure on health premia made only for his spouse or dependent children.
Similar provisions have also been enacted for other diverse expenditures. Persons in a live-in
or other long-term relationship without the stamp of marriage are not entitled to maintenance
from their partner under Section 125, CrPC or under the diverse family legislations. Indeed,
the Protection of Women from Domestic Violence Act, 2005 which recognises live-in
relationships "in the nature of marriage" provides for maintenance only in cases of domestic
violence. Even in such cases, the 2005 Act has no protection for couples who would not be
otherwise eligible to marry as mentioned in D. Velusamy v. D. Patchaiammal26.
Parsi marriage laws were a creature of common law prior to their codification as there is no
religious source. During their emigration from Persia, their books were lost, creating a
vacuum in law.
The privy council in Cursetjee v. Perozeboy27, suggested that the Supreme Court of Bombay
deal with Parsi marriages in its civil jurisdiction.
No ex ante (based on forecasts rather than on actual results) decision on the specifics of parsi
marriage was made in this case but the implicit assumption that parsis had a right to marry was
given effect to.
It is submitted that we on behalf of the petitioners contend that there is a need for amendment
of certain laws pertaining to marriage and adoption due to the infringement of Fundamental
Rights by such Laws. As contended earlier SMA requires a man and a woman to constitute a
couple and FMA specifies the words bride and bridegroom whilst CARA mandates two years
of stable marriage as a requisite for adoption. While these acts don’t recognise marriage for
homosexual couples there is no possibility for adoption as two years of ‘stable marriage’ is a
mandatory requisite. This becomes a hindrance for homosexual couples to adopt. There is no
26
(2010) 10 SCC 469 para 31
27
1856 SCC OnLine PC 6

scope for marriage in the existing legal regime for homosexual couples. Such absence is in
itself inherently discriminatory. The concept of marriage has always been progressive and
never static. From Sati to Widow Remarriage; from Child marriage to abolition of the same;
from violence in marriage to prohibition of same; and promoting inter faith and inter caste
marriage our country has always supported reforms in marriage. In all these instances the
stigma attached to them was broken by the legal system. Judiciary has always upheld
constitutional morality over social stigmas. Therein Judiciary’s decisions have always broken
the strongest of strongest stigmas in the society and is indeed capable of bringing a change in
mentality of people and the Law. Hence there is a need to recognise and provide for the rights
of Homo-sexual couples.
From the above mentioned arguments it can be concluded that the matter is admissible and
the PIL is maintainable as there is a gross violation of Fundamental Right and interest of the
minority is being ignored by the state, being it’s fundamental duty.

ISSUE 2
WHETHER THE MARRIAGE LAWS IN INDICA ARE VIOLATIVE OF

It is most humbly submitted before the hon’ble Supreme Court that the marriage laws in
Indica are violative of Fundamental Rights of Same Sex couples. The present laws
discriminate on the basis of one’s innate characteristic. An individual cannot be discriminated
based on ascriptive characteristics. Sexual identity and orientation are innate to the
individuals. The state cannot discriminate against an individual based on a characteristic
which a person has no control of.
The law in modern times sheds the notion that marriage is a precondition to the rights of an
individuals be it alone or in relation to one another.it is important to borne in mind about the
change in social norms and mores when a particular provision in law has been enacted in
order to extend its purpose. Statutes are forever speaking and law should be interpreted in
terms of changing needs and conditions. It is important to note that the significance of
marriage is a symbolic and legal title and also inadequacy of any alternative title.
The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s
population cannot be a ground to deprive them of their Fundamental Rights guaranteed by
Part III of the Constitution. Ancient Indian texts, inscriptions and paintings on temple walls,
clearly, acknowledge its existence in those days.
The protections and elucidation of rights of persons contained in the Universal Declaration of
Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural
Rights enjoin a duty upon the State to, firstly, not interfere with the right of a person to marry
and have a family as per their choice and, secondly, to protect the familial rights of all
persons without discrimination on the basis of inter alia sexuality, race, religion.
Pertinently, Article 16 of the UDHR, states as under:
(1) Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
It has been clarified that Article 16 of the UDHR is not restricted to marriage between
heterosexual persons alone, but also applies to all formulations of family, including marriage
between same-sex persons.
The opening words of the UDHR, that "All persons are born free and equal in dignity and
rights" will govern the interpretation of subsequent Articles, including Article 16, as was
clarified in a fact sheet issued by the Office of the High Commissioner of Human Rights,
United Nations in May, 2017. Therefore, the opening phrase of Article 16 which refers to
"Men and Women" must be read to include LGBT persons and is not limiting in nature
Marriage is not simply a privilege or benefit, but is deeply embedded in society, forming the
very basis of a couple's ability to fully participate in it:
a. For those who seek any form of marriage at all, it is a source of social and community
validation for a relationship, expressed through official recognition by the State through its
laws.
b. Relatedly, the ability to marry and the State and social recognition that comes along with it
often provides a sense of security to vulnerable couples, facing various forms of stigma or
pressure. In that sense, the ability or choice to marry is needed most by those whose
relationships are often subjected to familial or community disapproval.
c. With respect to the partners themselves, marriage provides greater financial and other
forms of security, especially to the more vulnerable partner.
d. Marital status is a gateway to a range of other legal and civil benefits, in the domains of
tax, inheritance, adoption, and others.
e. In our society, marriage and marital status -is a source of dignity, fulfilment, and self-
respect.
II.1. DISCRIMINATION BASED ON SEXUAL ORIENTATION
Regardless of one’s sexual orientation every individual deserves to have right to marry and
form a family. Marriage is a sentimental concept and is not to be associated with procreation.
It is unfair for the state to formulate and implement laws that facilitate the fundamental rights
only to a certain section of the societies, while depriving others of the same rights therein

there is violation of right to equality and right against discrimination. The LGBTQ here is
seeking the right of companionship which has a legal recognition which eventually is
marriage.
Confining the definition of marriage only to heterosexual couples would be discriminatory

against homosexual couples. Section 4(c) of Special Marriage Act,1954 provides as follows:
4. Conditions relating to solemnization of special marriages-

(c) the male has completed the age of twenty-one years and the female the age of eighteen
years;
The use of terminologies like male and female excludes the individuals from the other sex
which violates Article 14 & 15. Article 15 prohibits discrimination on the basis of religion,
race, caste, sex, place of birth or any combination of them. The word ‘sex’ also includes the
sexual orientation of an individual as interpreted by this Hon’ble court in the case of Navtej
Singh28, where the bench held, “Sexual orientation is an innate part of the identity of LGBT
persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies
at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.” and also in the case
of NALSA v. UOI29, as, “Each person’s self-defined sexual orientation and gender identity is
integral to their personality and is one of the most basic aspects of self-determination, dignity
and freedom.”
The same sex couples cannot be considered as outsiders and that their need for an affirmation
and protection of their intimate relations as human beings is somehow less than that of
heterosexual couples. The reinforcement of wounding notion that they are to be treated as
biological oddities and not as failed or lapsed human beings who do not fit into the normal
society and such do not qualify for the full moral concern and respect that our Constitution
aims at securing the interest of everyone. It is significant to take into consideration that their
capacity for love, commitment, and accepting responsibility is by definition no less worthy of
regard than that of heterosexual couples.
Article 14 guarantees equal protection for all under class legislation; heterosexual couples
have been guaranteed of their constitutional rights under statutory laws, whereas there is no
recognition or provision for homosexual couples to exercise their rights. In National Legal
28
Ibid10
29
(2014) 5 SCC 438

Services Authority v. Union of India & Ors30. this Court granted equal protection of laws to
transgender persons. There is therefore no justification to deny the same to LGBT persons
and such rights have been provided to the Transgender community respectively. The
LGBTQIA+ community excluding the transgender community, are discriminated not only
from heterosexual couples but also from their own community.
India is a signatory to various human rights treaties and conventions which requires it to
protect the rights of individuals, including the LGBTQ community.
A person’s sexual orientation is intrinsic to their being. It is connected with their

individuality, and identity. A classification which discriminates between persons based on
their innate nature, would be violative of their fundamental rights, and cannot withstand the
test of constitutional morality.
In Asha Ranjan v. State of Bihar31, the Hon’ble Court held that “choice of woman in
choosing her partner in life is legitimate constitutional right. It is founded on individual
choice that is recognised in the constitution under Article 19”.
The classification must not be arbitrary. There has to be some rational or substantial
reasoning behind the distinction drawn between the people who fall into the class and the
people who do not. There has to be some rational object behind the classification that the
legislation seeks to achieve. The classification can be on the basis of various factors like
geography, age, or occupation. It is only required for the object of the legislation to match
with the classification. At present the constitution recognises equal rights and dignity for
members of LGBTQ community. The right to marry is an important facet of an individual’s
social existence and their right to lead a dignified life with their partner and the denial of this
right to the community is violation of their right to equal treatment under the law.
Non-recognition of marriage between two consenting adults on basis of gender identity or

sexual orientation under the scheme of solemnization and registration of marriages in Special
Marriage Act, 1954 (SMA) violates Articles 14, 15, 19 and 21. Legislative intent in
recognizing inter-religious marriages must guide the recognition of LGBTQ. Interpretation of
statutes must bridge the gap between law and society. Discrimination to homosexual couple
and denial of right to marry and found a family violates Part III of the Constitution. A
30
Ibid 26
31
AIR SC 1079

commitment to rights of LGBTQ persons under Constitutional morality is a lacuna in this

scenario.
Our constitution however does not discriminate. It has been established clear in the Navtej
Singh 32case that Art 14,15 and 21 provides homosexuals the right to be treated equally
without discrimination and are entitled to life of dignity and privacy respectively. In Justice
K.S Puttaswamy V UOI33, it was held by Justice Chandrachud that family, marriage,
procreation and sexual orientation is integral to the dignity of an individual which is provided
for in Article 21 and there in the citizens have a right to family life which eventually includes
marriage. The rationale of silence was that the constitutional values of human dignity,
equality and freedom encompassed the right of any two people regardless of their sex, gender
or sexual orientation. It is necessary that the laws rapid changes according to the need in the
society
II.2. RIGHT TO LIFE BEING INFRINGED
The right to personal choice regarding marriage is inherent in the concept of individual
autonomy. Marriage supports a two-union unlike any other in its importance to the committed
individuals and for no reason denying the same sex couples the right to marry is against the
social principles of our society. In this context right to autonomy along with the right to
social security has been violated by marriage laws of Indica. When it comes to right to
autonomy, it is the right of an individual to choose a partner according to the sexual
orientation of that person and it is unfair to marry a person who is not of his sexual
orientation just to be recognised by the State. Wherein, when it comes to the idea of social
security, marriage in general is indeed form of a social security. It is important to note that the
homosexual couples have the need to be recognised. In fact these couples are the ones who
have the at most need to be recognised as they lack in social support. Indeed, the societal
stigma can be the one who discriminates a person from another but law does not do so. Law
provides equality among the equals and here equals meaning all the genders are human being.
The decriminalisation is the first step, the next step is providing legal recognition. This
eventually would protect the rights of the LGBTQ community. The constitutional principles
on which discrimination is based apply to a broader range of entitlements. The Hon’ble Court
32
Ibid 10
33
Ibid 18

in the case of Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra 34has held
that the constitutional role of judiciary also mandates taking a perspective on individual rights
at a higher pedestal than majoritarian aspirations.
The Court must have the responsibility to protect constitutional morality over social
morality. Provisions like the marriage of men and women of marriageable age to marry and to
found a family, no marriage shall be entered into without the free and full consent of the
intending spouses, states parties to the present covenant shall take appropriate steps to ensure
equality of rights and responsibilities of spouses as to marriage and as to dissolution of
marriage shall be recognised.
As quoted by Justice Bhagwati in Maneka Gandhi v. the Union of India 35, equality is a
dynamic concept that cannot be limited to our traditional understanding and knowledge.
Article 14 curbs the arbitrariness of state actions and ensures that there is justice and equality
in the treatment of all subjects.
If the heterosexual couples have the option of deciding whether to marry or not or whom to
marry so should the same sex couple have the choice whether to seek or achieve a status and
a set of entitlements on a par with those enjoyed by heterosexual couples. In addition to
violating the equal protection and anti- discrimination provisions, the exclusions of same sex
couples from marriage have violated the right to live with human dignity.
Right to life covers within its ambit the right to social security and protection of the family. In
the case of Calcutta Electricity Supply Corporation (India) Ltd. V. Subhash Chandra
Bose36, J.K,Ramaswamy held that right to social and economic justice is a fundamental right
under Article 21. The learned judge explained: “right to life and dignity of a person and status
without means were cosmetic rights. Socio Economic rights were therefore basic aspirations
for meaning the right to life and that right to social security and protection of family were an
integral part of the right to life.”
In the case of Lata Singh v Union of India37, the SC held that the petitioner had the right to
choose the partner whom she wanted to marry and the law does not prohibit inter-caste
marriages.
34
(2009) 6 SCC 498
35
Ibid8
36
AIR 1992 SC 573
37
Ibid 17

In Justice KS Puttaswamy v. Union of India38, while upholding the fundamental right to

privacy under Article 21, it was pointed out that vital personal choices related to marriage are
included within the ambit of privacy and dignity of an individual. The right to privacy is
indeed is not limited to private spaces and must indeed be exercised in public places as
explained in District Registrar and Collector v. Canara Bank39.
In Shakti Vahini v. Union of India40 also, the Apex Court adhered to this position. It held
that consensually choosing life partners is a manifestation of their freedom of choice
guaranteed under Articles 19 and 21 of the Constitution.
Consequently, in Shafin Jahan v. K.M. Asokan41, the Court stated that the right to marry the
person of one’s choice is a fundamental component of Article 21. This right cannot be
curtailed except through a law that is just and reasonable. It had also held that the right to
form a union which can be a mental, emotional or a sexual union including marriage is a
fundamental right of an individual under the Article21.
In the Laxmibai Chandaragi B. v. State of Karnataka42 depended on Shafin Jahan’s43 to

hold that the right to marry a person of one’s choice is integral to Article 21.
Taking into consideration of right to autonomy where it is the right of an individual to move
according to their own terms navigating public places without the interference of the state. It
is not fair for the homosexual couples to be moving around the closed doors unlike the
heterosexual couples.
II.3. NEED FOR RECOGNITION OF RIGHTS
Further in the case of Navtej singh 44the court had already given right of choice of sexual
partners, the right of choice should also extend to the choice of marrying or not marrying
such sexual partners. Right to choice should include the right to choose whether to get
married or not and in the choice of marriage there is no legal provision to protect the same.
The State by not recognising a same-sex union which is legal and by not granting benefits
which accrue from a marriage such as a opening joint banking account, ration card, joint
38
Ibid 18
39
(2005) 1 SCC 496
40
Ibid 19
41
Ibid 20
42
Ibid 21
43
Ibid 21
44
Ibid 10

insurance benefits, succession of property, pensions and gratuity shows its arbitrariness. For
instance, a father, daughter and heterosexual couples can hold a joint bank account but when
the homosexual couples are not married they don’t get to avail the benefits of such
entitlements as they are not a family.
Apart from these benefits they are also restricted from adopting a child due to the lack of
legal marital status. It is understood that every human being has a natural need of a person
and family. Only if marriage is legalised for the same sex couple ,they can adopt a child and
start a secured family.
During the advent of interfaith marriage there were various challenges faced by the couples
such as opposition by the society, families, peers etc. but the law that was enacted had given
them legal recognition ignoring the chaos. Similarly in this instance there is a lot of societal
stigma against the same sex community and a law to recognise them would really be capable
of changing the scenario in a positive way.
It is very well understood that during the enactment of SMA, section 377 of IPC,1860 was
not decriminalised therein homosexuality was not recognised back then in the Act. Now that
section 377 has been decriminalised there is a need to amend the law to be inclusive of
homosexual couples.
In Indra Sarma v. VK Sarma45 the hon’ble court laid down the following standards to meet
the test of relationship in the nature of marriage for protection under the law:
 Duration of relationship
 Shared household
 Pooling of financial resources
 Domestic arrangements
 Sexual relationship
 Child rearing
 Socialization in public
 Intention and conduct of parties.
45
AIR 2014 SC 309

This was however applicable to heterosexual couple but the homosexual couple do not indeed
lack in the above mentioned standards and are capable of passing the standards of nature of
marriage.
Choice of partner and self-defined gender identity are a form of expression that is protected
by Article 19. Three critical freedoms that are protected under Article 19(1), as elucidated in
judgements of this Hon'ble Court, may be summarised as follows:
1. To marry a partner of one's choice
2. To self-defined gender identity
3. To sexual orientation, be it homosexual, bisexual or heterosexual
In addition to attracting the protective cover of Article 19(1) of the Constitution, the
aforementioned freedoms/rights of an individual also form part of the right to a life with
dignity under Article 21, including a right to privacy. The aforesaid freedoms strike at the
core of an individual and are an indelible aspect of their private life. Not only can the State
not interfere in these choices, there is also a positive obligation on the State to spread
awareness and ensure that the aforementioned fundamental rights of a person are not
abrogated by any institution or authority.
The choice of partner and making public that choice is a pivotal moment in a person's life
and the exercise of that choice is a momentous act of self-expression. Ceremony associated
with this expression, especially the ceremony of marriage, involves the co-mingling of
families and friends and the signalling of a commitment. Whether to marry or not, who to
marry are matters of personal choice. For those choosing to marry, the performative,
celebratory and cementing nature of the union is often paramount. There can be no limitation
on the choice of one's partner, save and except for restrictions based on age and relationship.
The right to choose a partner is a facet of the freedom of expression guaranteed under Article
19(1), since marriage is an expression of choice by an individual. Such constitutionally
protected choice cannot be subordinated to majoritarian views and cannot be limited
unreasonably. The right to marry cannot be denied as it is a paramount of freedom and
expression.

II.4. NEED FOR MARRIAGE OR UNION EQUIVALENT BUT NOT LESS THAN
MARRIAGE
The introduction of same-sex marriage would not eliminate discrimination against same-sex
married couples, but it would remove the problem of ignorance and remove one of the
excuses for prejudice. Considering social stigma and not changing the laws would only
prolong the problems like bullying and other socio stereotypical behaviour. It’s time to
change the use of the words gay, lesbian as a word of insult and the courts have immense
power to do so by legalising the marriage as it would normalise one being comfortable in
one’s own sexual orientation. The contention here is not to oppose any right for heterosexual
couple but to seek the right they have not only as a homosexual couple but also as a human
being.
The current law directs the person to marriage, with no choice, and states that a right would
be given only if a person marries a category the law prescribes. This in itself is a
discrimination. Not recognising homosexual marriage would lead to lavender marriages,
which is when a person having his sexual orientation towards a man gets married under
compulsion of marriage with a women having sexual orientation towards a man or woman
would lead to the dissolution of social institution which in simple terms means divorce
Hence, from the arguments submitted in the present issue we can conclude that homosexual
couples are being discriminated based on sexual orientation and the denial of such right has
not been justified by the government.

ISSUE 3

It is humbly submitted before the hon’ble Supreme Court that the adoption laws in Indica are
violative of fundamental rights of same sex couple. As it is known that the LGBTQ+
Community have faced numerous legal and societal challenges and adoption by same sex
couples is prohibited in India. According to Juvenile Justice (Care and Protection of Children
Act of 2015), adoption is the formal if establishing a parent-child relationship. According to
the laws that govern adoption, the process requires the legally binding transfer of a biological
child to a set of parents in particular heterosexual parents or a single parent. The
Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice had
itself stressed the need for standard and thorough adoption law that would apply to everyone,
regardless of faith, and would apply to LGBTQ+ community as well.
According to the Central Adoption Resource Authority’s requirements which are part of
Juvenile Justice Act 2015 gives everyone, regardless of religion, the capacity to adopt. No
child shall be placed in adoption unless the couple have at least two years of a solid marriage
according to the requirement of law. Where in case of same sex couples marriage would not
be possible as it is not recognized and are they are eventually ineligible.
One of the main factor which affects the legislation from making the laws regarding the same
is social or societal stigma. But that should not be an hinderance for a greater body such as
the judiciary to make changes in the laws that totally discriminates a certain group of people.
Despite various legal challenges, there have been several instances of same sex couples
successfully adopting children in India. In the case of Sandro Gomez v. CARA & Anr46 a gay
couple from Spain was granted permission to adopt a child after 2 years of hearing.
Good and Bad parenting cannot be decided on one’s sexual orientation or one’s sexuality
assuming that only one particular class of people would only be good or better parents.
Therein the adoption regulation is violative of Article 15 for discriminating against the queer
community. One of the need for requirement of marriage by the same sex couples is itself to
adopt a child and start a family. Atleast the feeling of parenting, love and affection should not
46
WP No. 1305 of 2015

be restricted based on one’s sexual orientation. And one of the reason why same sex couples
are not able to adopt is because of the aspect of marriage as already observed.
Basically, before enacting any law the criteria prescribed must be in tune with the
constitutional values. But here the indicators discriminate one by their sexual orientation.
III.1. BREAKING THE SOCIETAL STIGMA
Changing adoption laws to allow the same sex couples to adopt children would not affect the
welfare of the child but instead would provide loving homes for the children. As per a recent
report conducted the rate of orphan or abandoned children have increased immensely. By
allowing the same sex couples to adopt the rate of abandoned children would reduce and they
would be given equal love and support as the heterosexual couple. The Constitution protects
diverse forms of families, based on the inherent claims of dignity and autonomy of
individuals. This Hon'ble Court in Deepika Singh v. Central Administrative Tribunal
47
emphatically noted:
“The predominant understanding of the concept of a "family" both in the law and in society is
that it consists of a single, unchanging unit with a mother and a father (who remain constant
over time) and their children. This assumption ignores both, the many circumstances which
may lead to a change in one's familial structure, and the fact that many families do not
conform to this expectation to begin with. Familial relationships may take the form of
domestic, unmarried partnerships or queer relationships... Such atypical manifestations of
the family unit are equally deserving not only of protection under law but also of the benefits
available under social welfare legislation. The black letter of the law must not be relied upon
to disadvantage families which are different from traditional ones".
The homosexual couples have the right to family and the above judgment states could
include queer relationships as well.
Change in adoption laws would also help to reduce the social stigma and discrimination faced
by homosexual couples in Indica and would promote greater acceptance of homosexuality.
There is indeed a need for greater advocacy of homosexual couples and there is a immense
need for amendment of adoption laws in our country.
47
2022 SCC OnLine SC 1088

In the case of Laxmi Kant Pandey v. UOI48 the court has clearly recognized that every child
has a right to family. This right could be interpreted to incorporate the right to be adopted.
In addition to this Article 39(f) requires the government to formulate policies to ensure that
children have opportunities and facilities to develop in a healthy, free and dignified way. The
blanket exclusion of the same sex couples from joint adoption, owing to the impugned
Regulations squarely goes against the best interest of the adopted children.
There is no legitimate State interest, much less a compelling one, in limiting the right to
found a family only to heterosexual couples, to the exclusion of LGBTQ couples. A parent's
sexual orientation has no bearing on the development of the child and same-sex couples make
as competent parents as any heterosexual couple. The only criterion is whether the adoptive
parent is providing an adequate level of care for the child or not. As long as the parents are
providing such care, the State should not intervene in the parent-child relationship.
The impugned regulations are further inconsistent with the Directive Principles of State
Policy in respect of children bound to be followed under Article 39(f) of the Constitution, and
ought to be read in conjunction with Artide 21. Article 39(f) requires the State to take
measures to ensure that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment. The impugned Regulations
betray a complete disregard of the constitutional duty under Article 39(f) cast upon the
Respondents, as they deprive the adopted child of a same-sex couple of a legal relationship
with both parents.
Therefore, forcing a child to live in an institution and depriving them of their right to family
is tantamount to depriving them of their freedom and dignity in life, and therefore violates
our national policy guidelines. Also in the case of Indian Hotel and Catering Association
and Anr. V State of Maharashtra49, people believe that the country cannot impose its own
moral values on society. Depriving a child to be adopted by the LGBTQ community is
equivalent by the state of its stereotypical morality.
48
1984 AIR 469
49
2019 (3) SCC 429

III.2. OPPRESSION OF LEGISLATIONS
The Indian legislations create ambiguity by mentioning that marital status is not considered
when adopting a child. However, this provision is applicable only for single individuals who
want to adopt a child and whenever a couple wants to adopt jointly the law mandates the
marital relationship and consent of both spouses. Since same-sex marriages are not legalized
in India, these legislations defeat the very intention of decriminalizing homosexuality by
limiting various civil liberties of same-sex couples. The oppressive legislations like Hindu
Adoption and Maintenance Act, 1956, Juvenile Justice Act, 2015 and the Adoption
Regulations which prevents the same sex couples from adopting children are against the
fundamental rights guaranteed under Articles 14, 15 and 21 of the Indian Constitution. Here
since there are no marital rights for the homosexual couples they would be automatically
considered as unmarried which would be a disqualification to adopt a child.
In the JJ Act by depriving the adopted child of a same-sex couple of a legal relationship with
the de facto parent under Section 63 of the JJ Act solely because the parents' same-sex
marriage is not valid under Indian law. In their current form the impugned provisions exclude
from their ambit potential joint adoptive parents who are unmarried, but who are partners in
permanent same-sex life partnerships and who would otherwise meet the criteria set out in
section 18 of the Child Care Act. Their exclusion surely defeats the very essence and social
purpose of adoption which is to provide the stability, commitment, affection and support
important to a child's development, which can be offered by suitably qualified persons.
The adoption legislations fail to clear the classification test of Article 14 since the unjust
classification among individuals created by these Acts creates room for discrimination
between married and unmarried couples. There are no reasonable objectives that could be
achieved through such classification. It violates the constitutional values of equality before
the law and equal protection under the law. The adoption laws are in contravention of the
fundamental right to protection from discrimination, guaranteed under Article 15. Same- sex
couples are guaranteed the right to live with dignity and honor under Article 21 of the
Constitution. It includes the right to individual choice, autonomy and self-determination.
Marriage depends on individual choice and any laws which are arbitrary and unfair or
discriminatory against unmarried people either individually or collectively are ultra vires of
the Constitution.

In India, same-sex marriages are not recognized; hence homosexual couples are unable to
adopt a child jointly. The law prevents LGBTQ+ couples from adopting children together
proving that they are still not treated equally in the eyes of the law. As a result, same-sex
couples are restrained from adopting since the child should not be reared in an "inferior
family". The law allows a child to be raised as an orphan without both parents rather than
being raised by homosexual couples. While LGBTQ couples are not eligible to adopt,
Indica's orphan population is growing by the day.
In summary, there is no evidence to suggest that lesbian women or gay men are unfit to be
parents or that psychosocial development among children of lesbian women or gay men is
compromised relative to that among offspring of heterosexual parents.
Results of research to date suggest that children of lesbian and gay parents have positive
relationships with peers and that their relationships with adults of both sexes are also
satisfactory. The picture of lesbian mothers' children that emerges is one of general
engagement in social life with peers, with fathers, with grandparents, and with mothers' adult
friends-both male and female, both heterosexual and homosexual. Fears about children of
lesbians and gay men being sexually abused by adults, ostracized by peers, or isolated in
single-sex lesbian or gay communities have received no support from the results of existing
research.
III.3. SEXUAL ORIENTATION NOT A GROUND TO DECIDE THE QUALITY OF

PARENTING
The wellbeing and best interests of the child come first in any adoption situation. Children
raised by same-sex couples do equally as well as those reared by heterosexual couples,
according to a number of studies. For instance, the American Psychological Association has
emphasised that parental behaviour and family relationships-rather than the parents' sexual
preferences have a greater impact on children's wellbeing. By limiting the number of
prospective loving and caring homes and dis- regarding the wellbeing of numerous children
who may benefit from adoption, the right to adopt is denied to same-sex couples.
In Lakshmi Kant Pandey v. Union of India50 bench of the Hon'ble Court recognised the right
of a child to be adopted, derived from the broader right of a child to grow up in the loving
environment of a family:
50
Ibid 45

".. Every child has a right to love and be loved and to grow up in an atmosphere of love and
affection and of moral and material security and this is possible only if the child is brought up
in a family. The most congenial environment would, of course, be that of the family of his
biological parents. But if for any reason it is not possible for the biological parents or other
near relative to look after the child or the child is abandoned and it is either not possible to
trace the parents or the parents are not willing to take care of the child, the next best
alternative would be to find adoptive parents for the child so that the child can grow up under
the loving care and attention of the adoptive parents. The adoptive parents would be the next
best substitute for the biological parents.”
When it comes to the numbers of children in India who require homes, there is a serious
problem. Many youngsters spend a considerable amount of their childhood in institutional
care as a result of the lengthy and complicated adoption procedure. By permitting same-sex
couples to adopt, the pool of prospective adoptive parents would grow, boosting the
likelihood that children waiting for adoption will find suitable and devoted homes. This larger
pool of potential parents can lessen the strain on the already overworked adoption system and
improve results for kids who need them.
Homosexual couple are capable of giving the loving care and attention. The same sex couple
would indeed be good at parenting as the heterosexual couples. Once the same sex couples
are validly married under foreign law, they cannot be stripped of their marital status in Indica,
owing to non-recognition of their marriage under the FMA. They cannot be treated as
strangers to each other in law, with no aspect of their relationship having legal recognition or
acceptance. The Courts lean towards validity of marriages, rather than invalidity. It is not
enough to be able to live together or love each other without fear of law or the knock of the
police on their door. The same sex should have the right to celebrate their relationship and
their commitment to each other in public as recognised by Indican law. They should not have
to choose between their home country and their fundamental rights to marriage, family and
motherhood because if these rights are not provided then they would have to move to another
country just for the reason that they cannot express themselves in their home country .
Hence, from the arguments submitted in the present issue we can conclude that homosexual
couple like any other couple should get the right of adoption as they deserve to get the right
to parenthood. Good parenting cannot be based on ones sexual orientation and law by giving
justice would help to bridge the gap between these people and society.

PRAYER
Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the Hon’ble Supreme Court of Adini, that it may be
graciously pleased to adjudge and declare that:
1. That the petition is admissible in the Supreme Court of Indica

2. The marriage laws in Indica are violative of Fundamental Rights of same sex
couples.
3. The adoption laws in Indica are violative of Fundamental Rights of same sex
4. That the court may direct the parliament for the sui generis legislation.
AND/OR
Pass any other order that it may deem fit in the Favor of the petitioners to meet the ends of
equity, justice and good conscience. For this act of Kindness, the petitioners shall duty bound
forever pray.
SD/- (Counsel for Petitioner)
Respectfully submitted
(Counsel for Petitioner)

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M.K.E.

S 8TH NATIONAL MOOT COURT COMPETITION 2024 - VIDHIGYAAN

BEFORE THE HON’BLE SUPREME COURT of INDICA

ORIGINAL WRIT JURISDICTION

RANG SAMRIDDHI NYAS..………………………………..………….…..PETITIONER

Most Respectfully Submitted to the Hon’ble Supreme Court of Indica

Counsel for the Petitioner Petitioner

Sl no. CONTENT PAGE

1 LIST OF ABBREVIATIONS iii

2 INDEX OF AUTHORITIES iv-v

3 TABLE OF CASES vi-vii

3 STATEMENT OF JURISDICTION viii

7 ARGUMENTS ADVANCED 1-28

1. WHETEHR THE MATTER IS ADMISSIBLE IN 1-11

2. WHETHER THE MARRIAGE LAWS IN INDICA ARE 12-21

3. WHETHER THE ADOPTION LAWS IN INDICA ARE 22-28

SCI Supreme Court of India

u/s Under section

SCC Supreme Court Cases

AIR All India Report

SCR Supreme Court Report

u/a Under Article

ICCR International Convention for Child Rights

SMA Special Marriage Act 1954

FMA Foreign Marriage Act 1969

PMDA Parsi Marriage And Divorce Act 1936

HMA Hindu Marriage Act 1956

UDHR Universal Declaration of Human Rights

12TH EDN. (2013)

Sl.no CASES CITATION

1. People’s Union for Democratic Rights & 1982 AIR

19. Laxmibai Chandaragi B. v. State of AIRONLINE 2021

23. NALSA v. Union Of India (2014) 5 SCC 438

30. Deepika Singh v. Central Administrative 2022 SCC OnLine

31. Laxmi Kant Pandey v. UOI 1984 AIR 469

WHETHER THE MARRIAGE LAWS ARE VIOLATIVE OF FUNDAMENTAL

WHETHER THE ADOPTION LAWS IN INDICA ARE VIOLATIVE OF

WHETHER THE MARRIAGE LAWS ARE VIOLATIVE OF FUNDAMENTAL

WHETHER THE ADOPTION LAWS IN INDICA ARE VIOLATIVE OF

Democracy increases tolerance by exposing residents to new perspectives. Democracy also

MEMORIAL ON BEHALF OF PETITIONERS 1

MEMORIAL ON BEHALF OF PETITIONERS 2

I.1. LOCUS STANDI

Remedies for enforcement of rights conferred by this Part —

the rights conferred by this Part is guaranteed.

MEMORIAL ON BEHALF OF PETITIONERS 3

MEMORIAL ON BEHALF OF PETITIONERS 4

MEMORIAL ON BEHALF OF PETITIONERS 5

I.2. VIOLATION OF FUNDAMENTAL RIGHTS

MEMORIAL ON BEHALF OF PETITIONERS 6

I.2.1. ARTICLE 14 BEING NEGATED

In the case of Sri Srinivasa Theatre v. Government of Tamil Nadu 16

MEMORIAL ON BEHALF OF PETITIONERS 7

In the case of State of West Bengal v. Anwar Ali Sarkar 17

I.2.2 NEGATION OF ARTICLE 15

MEMORIAL ON BEHALF OF PETITIONERS 8

I.2.3 ARTICLE 21 BEING VIOLATED

In Justice KS Puttaswamy v. Union of India21, while upholding the fundamental right to

MEMORIAL ON BEHALF OF PETITIONERS 9

In the Laxmibai Chandaragi B. v. State of Karnataka24 depended on Shafin Jahan to hold