Padman

28th KLA ALL INDIA MOOT COURT COMPETITION 2019 (7th – 9th February 2019)
TEAMCODE: 22
28TH ALL INDIA MOOT COURT COMPETITION 2019

KERALA LAW ACADEMY
BEFORETHE HON’BLE SUPREME COURT OF INDIA
PUBLIC INTEREST LITIGATION
P.I.L.NO. /2019
IN THEMATTER OFARTICLES 14 &21OFTHECONSTITUTION OFINDIA AND SECTION 4(c)

OF THE SPECIAL MARRIAGE ACT,1954
ANERSHI & BHERNI…...…………….…...………………………..……....…..PETITIONER NO.
1FRIENDS OF LGBT……………………………………….…….....……..…..…PETITIONER NO.
v.
UNIONOF INDIA.............................................................................................…RESPONDENTNO.1
BEFORE
THEHON’BLESUPREMECOURTOFINDIA
MEMORIAL ON BEHALF OF THE RESPONDENT 1

MEMORIALONBEHALF OFTHERESPONDENTS

TABLE OF CONTENTS
LIST OFABBREVIATIONS................................................................................................... 3
INDEX OFAUTHORITIES .................................................................................................... 6
STATEMENT OF JUSRISDICTION .................................................................................. 10
STATEMENT OFFACTS ..................................................................................................... 11
STATEMENT OF ISSUES ................................................................................................... 13
SUMMARYOFARGUMENTS ............................................................................................. 14
ARGUMENTSADVANCED ................................................................................................. 16
ISSUE I: WHETHERTHE PETITIONERS HAVE THE LOCUS STANDI TO

APPROACH THE HON’BLE SUPREME COURT U/A 32 OF THE CONSTITUTION
OF INDIA. .............................................................................................................................. 16
1. There is no violation of fundamental rights……………………………………………...16
1.1 No violation u/as 14 and 15………………………………………………..16
1.2 The term Sex u/a 15 does not include Sexual orientation…………………………...17
1.2.1 Negative Impact on the institution of marriage……………………………...17
1.2.2 Negative Impact on the institution of Family………………………………..18
1.2.3 Negative impact on other constituting elements of the Society……………..18
1.3 Potential negative impacts of expansive interpretation of article 15 on public
health…………………………………………………………………………………18
1.4 That fundamental right u/a 21 has not been violated………………………………...18
2. The existing alternative remedies have not been exhausted……………………………..19
ISSUE 2: WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO

SOLEMNISE THE MARRIAGE, IS VALID OR NOT?..............................................
1. That same-sex marriages are against contemporary social morality.
1.1 Children’s hunger for their biological parents.
1.2 Importance of paternal commitment
1.3 Gender complementarity in parenting
1.4 Children raised by homosexuals are more likely to experience gender and sexual
disorders
1.5 Same-sex marriage would undercut the norm of sexual fidelity within marriage.
1.7 Same-sex marriage would further isolate marriage from its procreative purpose
1.8 De-gendering of marriage
1.9 Fewer and less stable marriages in the absence of fathers
2. That same-sex marriages are not permissible under the Special marriage act, 1954 being
in contravention of Sec. 4(c) of the said Act.
2.1 Interpretation of the word ‘and’ u/s 4(c) of the said act
2.2 Traditional concept of marriage
2.3 Legislative intent behind the construction of the act
PRAYER……………………………………………………………………………………..35

LISTOF ABBREVIATIONS
ABBREVIATIONS FULLFORM
& And
AIR All India Reporter
All Allahabad
Anr Another
Art. Article
Bom Bombay
BomLR Bombay Law Reporter
Cal Calcutta
CAD ConstitutionalAssemblyDebates
Co. Company
Ed. Edition
HC High Court
ILR Indian Law Reporter
J&K Jammu and Kashmir
JT Judgement Today
No. Number
Ori Orissa
Ors Others
p. PageNumber
Sec. Section
SC Supreme Court
SCC SupremeCourt Cases
SCR SupremeCourt Reporter
IVF In Vitro Fertilization


Supp Supplementary
u/a UnderArticle
u/s U/s
ART Assisted Reproductive Technique
UOI Union of India
UP Uttar Pradesh
v. Versus
Vol Volume
w.e.f. WithEffect From

INDEX OFAUTHORITIES
[A] IndianCases
1. Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539
2. GuruvayurDevaswom Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546
3. BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333
4. Ramjilal v. Income Tax Officer, AIR 1951 SC 97
5. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
6. Namit Sharma v. Union of India, (2013) 1 SCC 745
7. Tinkushia Electric Supply Co. v. State Of Ass. AIR 1990 SC 123.
8. KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225
9. Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1
10. Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411
11. KedarNathBajoria v. State of W.BAIR 1953 SC 404
12. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1
13. Naz Foundation v. Government of N.C.T. Of Delhi, 160 Delhi Law Times 277
14. S. Khushboo v. Kanniammal & Anr., Criminal appeal No. 913, (Supreme Court,
18/03/2016)
15. Madan Mohan Singh & Ors v. Rajni Kant &Anr., Civil Appeal No. 6466, (Supreme
Court, 14/03/2016)
16. D. Velusamy v. D. Patchaiammal, Criminal Appeal No. 2028-2029, (Supreme Court,
15/05/2010)
17. Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583
18. Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726
19. Union of India v. Paul Manickam, AIR 2003 SC 4622
20. Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.
21. Navtej Singh Johar v Union Of IndiaAIR 2018 SC 4321
22. Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.
23. K.A. Abbas v. Union of India and another (1970) 2 SCC 780 19
24. Rt. Rev. Msgr. Mark Netto v. State of Kerala and others (1979) 1 SCC 23

[B] Statutes
1. The Constitution of India

2. The Special Marriage Act, 1954
[C] Articles and Reports
1. Gloria A. Marshall, Marriage and Divorce, Encyclopedia of Latin American History and
Culture (2008)
2. Rhoda E. Howard, Gay rights and right to a family, Human Rights Quarterly (2001).
3. Gordon Neal Diem, The Definition of "Family" in a Free Society, Libertarian Nation
Foundation (2018)
4. Stuart Butler, Why Strong Social Institutions Are Needed to Survive Economic Growth,
The Heritage Foundation (1997)
5. Kuljit Kaur, Legal Education and Social Transformation, WBNUJS (2010)
6. George A. Rekers, Review of Research on Homosexual Parenting, Adoption, And Foster
Parenting
7. Larrry Houston, Homosexual Parenting Myth, Chapter 11, (2007)
8. Dorothy A. Greenfeld & EmreSeli, Assisted Reproduction in Same Sex Couples.
9. Nicholas Wade, Supremacy of a Social Network, N.Y. TIMES, Mar. 14, 2011,
10. Bernard Chapais, Primeval Kinship: How pair-bonding gave birth to human society
(2008)
11. St. Thomas Aquinas, Summa Contra Gentiles, bk. 3:ii, Ch. 122
12. Ryan T. Anderson, Marriage: What It Is, Why It Matters, and the Consequences of
Redefining It
13. Raeburn, P. Do fathers matter? What science tells us about the parent we’ve overlooked,
New York: Scientific American (2014).
14. Sherif Girgis, Ryan T. Anderson, & Robert P. George, What Is Marriage? Man and
Woman: A Defense (2012).
15. Bruno Bettelheim, The uses of enchantment: The meaning and importance of fairy tales
(1975)
16. Andrew J. Cherlin, The marriage-go-round (2009)
17. Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond

Hierarchies Within Lesbian Adoptive Families, CHILD & ADOLESCENT SOC. WORK
J. (2003);
18. Claudia Ciano-Boyce & Lynn Shelley-Sireci, Who Is Mommy Tonight? Lesbian
Parenting Issues, (2002).
19. Matthew D. Bramlett, The Health and Well-Being of Adopted Children, PEDIATRICS
(Supp. 2007)
20. Patrick F. Fagan, Family Research Council, Adoption works well: A synthesis of the
literature (2010)
21. Susan F. Appleton, Gender and Parentage: Family Law’s Equality Project in Our
Empirical Age, in WHAT IS PARENTHOOD?
22. Donald Paul Sullins, “Emotional Problems Among Children with Same-Sex Parents:
Difference by Definition,” British Journal of Education, Society and Behavioural
Science, Vol. 7, No. 2 (2015),.
23. Sullins, “Emotional Problems Among Children with Same-Sex Parents.”
24. Paul Ames, Dutch Gays Don’t Take Advantage of Opportunity to Marry, GLOBAL
POST (2011)
25. Neilands, Torsten B.; Chakravarty, Deepalika; Darbes, Lynae A.; Beougher, Sean C.; and
Hoff, Colleen C.,“Development and Validation of the Sexual Agreement Investment
Scale,” Journal of Sex Research (2010),
26. Joseph Nicolosi, An Open Secret: The Truth About Gay Male Couples
27. Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, (2002)
28. Maggie Gallagher, Rites, Rights, and Social Institutions: Why and How Should the Law
Support Marriage? (2004)
29. Maggie Gallagher, Does Sex Make Babies?
30. Alan J. Hawkins, Jason S. Carroll, Jenet J. Erickson, Dean M. Busby, & Mark H. Butler
Same-sex Marriage: Gender Complementarity vs. Gender Irrelevance, S. L. Nock.
Marriage as a public issue. Future of Children, (2005)
31. Girgis, S., Anderson, R. T., & George, R. P. What is marriage? Man and woman: A
defense (2012)
32. Jason S. Carroll & David C. Dollahite, Who’s My Daddy? How the Legalization of Same-
Sex Partnerships Would Further the Rise of Ambiguous Fatherhood in America in
WHAT’S THE HARM? Does Legalizing same-sex marriage really harm individuals,
families, or socieites? (2008).

[F] InternationalCases
1. Obergefell v. Hodges 135 U.S 2584 (2015)

2. Singer v. Ham, 522 P.2d 1187, 1195 (Wash. Ct. App.),
[D] Treaties
1. Article 7, Convention on the Rights of the Child
[E]Books
1. C.K. TAKWANI, LECTURESON ADMINISTRATIVE LAW 31 (2008)................. 20
2. CORWIN,THECONSTITUTIONAND WHATIT MEANS TO-DAY,78(1958).16
3. H.M. SEERVAI,CONSTITUTIONAL LAW OFINDIA: A

CRITICALCOMMENTARY(4th ed. 1991) ................................................................ 18
4. M PJAIN,INDIANCONSTITUTIONAL LAW (LexisNexis 7thed. 2014) .....................

5. KUMUD DESAI’S, INDIAN LAW OF MARRIAGE AND DIVORCE
[I]DATABASESANDWEBSITES
1. LexisNexis[www.lexisnexis.com]
2. Westlaw[www.westlaw.com]
3. Manupatra[www.manupatra.com]
4. SCC Online [www.scconline.co.in]
5. Hein Online [www.home.heinonline.org]

STATEMENT OFJUSRISDICTION
The Petitioners have approached the Hon’ble Supreme Court of India u/a 32 of the
Constitution of India.
Article 32 oftheConstitution reads as follows:
“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 clause (1)
and (2), Parliament may by law empower any other Court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.”

STATEMENT OF FACTS
BACKGROUND OF THE PARTIES
ANERSHI AND BHERNI

They are final year LL.B. students of Mangala Law College, Shakhipur, Rangasthan. In
August 2017, through social media these girls declared that they are the supporters of
same sex marriage and for the past six months they have been living as spouses. They also
faced harassment from fellow students and certain other sections of the society.
FRIENDS OF LGBT
It is a non-governmental organization of LGBT activists which provided strong support to
Anershi and Bherni.
NOTICE TO THE MARRIAGE OFFICER

On 3/10/2018, Anershi and Bherni submitted notice u/s 5 of the Special Marriage Act
before the Marriage Officer, Shakhipur North, for solemnization of marriage between
them.
OBJECTIONS RAISED BY Fr. SAMUEL

Upon the publication of the notice, one Fr. Samuel, vicar of a Catholic church, filed an
objection stating that same sex marriage is not permissible under the Special Marriage
Act, 1954 and pointed out Section 4(c) of the Act in support of his contention.
Fr. Samuel further submitted seven reasons for supporting his contention that same sex
marriage is against contemporary social morality–
1. Children’s hunger for their biological parents.

Homosexual couples using ‘in vitro fertilization’ (IVF) or surrogate mothers for
procreation of children, deliberately create a class of children who will live apart from
their mother or father.
2. Children need fathers.

If same-sex civil marriage becomes common, most same-sex couples with children would
be lesbian couples. This would mean that we would have yet more children being raised
apart from fathers. Among other things, we know that fathers excel in reducing anti-social
behaviour and delinquency in boys and sexual activity in girls.
3. Children need mothers.

If homosexual civil marriage is legalized, households deny children their mother. Among
other things, mothers excel in providing children with emotional security and in reading
the physical and emotional cues of infants. Obviously, they also give their daughters
unique counsel as they confront the physical, emotional, and social challenges associated
with puberty.
4. Evidence suggests children raised by homosexuals are more likely to experience gender
and sexual disorders.

Judith Stacey, a sociologist and an advocate for same-sex civil marriage, reviewed the
literature on child outcomes and found the following: “lesbian parenting may free
daughters and sons from a broad but uneven range of traditional gender prescriptions.”
Her conclusions based on studies show that sons of lesbians are less masculine and that
daughters of lesbians are more masculine.
5. Same-sex marriage would undercut the norm of sexual fidelity within marriage.
One of the biggest threats that same-sex "marriage" poses to marriage is that it would
probably undercut the norm of sexual fidelity in marriage. In the first edition of his book
in defence of same-sex marriage, Virtually Normal, homosexual commentator Andrew
Sullivan wrote: “There is more likely to be greater understanding of the need for
extramarital outlets between two men than between a man and a woman.” Of course, this
line of thinking--were it incorporated into marriage and telegraphed to the public in
sitcoms, magazines, and other mass media--would do enormous harm to the norm of
sexual fidelity in marriage.
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-natalist 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.
DECISION OF THE MARRIAGE OFFICER
The Marriage Officer refused to solemnize the marriage of Anershi and Bherni on the
basis of Fr. Samuel’s objections. The decision has been communicated to Anershi and
Bherni on 4-12-2018.
PETITIONS BEFORE THE SUPREME COURT
I. On 11/12/2018, Anershi and Bherni filed petition before the Supreme Court u/a 32 of the
Constitution challenging the validity of the decision of the Marriage Officer. The prayer of
the petitioners was to issue the writ of mandamus or any appropriate direction to
solemnize their marriage.
II. On 14/12/2018, Friends of LBGT filed a public interest litigation before the Supreme
Court u/a 32 of the Constitution seeking the intervention of the Court for preventing the
discrimination on the basis of sex.
III. The Court has decided to hear both the writ petitions together and issued notice to Union
of India and State of Rangasthan. Both Union of India and State of Rangasthan submitted
that both the petitions may be dismissed.

STATEMENT OF ISSUES
~ ISSUE I ~
WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO APPROACH

THE HON’BLE SUPREME COURT U/A 32 OF THE CONSTITUTION OF INDIA?
~ ISSUE II~
WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO SOLEMNISE THE

MARRIAGE, IS VALID OR NOT?

SUMMARYOF ARGUMENTS
ISSUE I: WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO

APPROACH THE HON’BLE SUPREME COURT U/A 32 OF THE CONSTITUTION OF
INDIA?
In the present case the Petitioners do not have the locus standi to approach the Hon’ble Supreme
Court u/a 32 of the Constitution of India since-
1 There is no violation of fundamental rights
1.1 No violation u/a 14 and15
1.2 The term “Sex” u/a 15 does not include Sexual orientation
1.2.1 Negative Impact on the institution of marriage
1.2.2 Negative Impact on the institution of Family
1.2.3 Negative impact on other constituting elements of the Society
1.3 Potential negative impacts of expansive interpretation of art 15 on public health
1.4 That fundamental right u/s 21 has not been violated
2 The existing alternative remedies have not been exhausted
ISSUE II: WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO SOLEMNISE

THE MARRIAGE IS, VALID OR NOT?
The refusal of the Marriage Officer to solemnize the marriage of the petitioners, Anershi and Bherni
is valid, justified and in consonance with the law of the land since:
3 Same-sex marriages are against contemporary social morality.

3.1 Children’s hunger for their biological parents.
3.2 Importance of paternal commitment
3.3 Gender complementarity in parenting
3.4 Children raised by homosexuals are more likely to experience gender and sexual disorders

3.7 Same-sex marriage would further isolate marriage from its procreative purpose
3.8 De-gendering of marriage
3.9 Fewer and less stable marriages in the absence of fathers
4 Same-sex marriages are not permissible under the Special Marriage Act, 1954 being in
contravention of Sec. 4(c) of the said Act.
4.1 Interpretation of the word ‘and’ u/s 4(c) of the said Act
4.2 Traditional concept of marriage
4.3 Legislative intent behind the construction of the Act

ARGUMENTSADVANCED
ISSUE 1: WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO APPROACH

THE HON’BLE SUPREME COURT U/A 32 OF THE CONSTITUTION OF INDIA?
It is humbly submitted that a writ petition can be filed before the Supreme Court u/a 321 for the
enforcement of Fundamental Rights, as guaranteed by part III of the Constitution2. In the instant case,
firstly, there has been no violation of any Fundamental Rights of the Petitioners and secondly, the
Petitioners have failed to exhaust the available alternative remedies before approaching this Hon’ble
Court.
1.1 THAT THE WRIT PETITION IS NOT MAINTAINABLE IN THE INSTANT CASE
1.1.1 There is no violation of fundamental rights
The jurisdiction u/a 32 can be invoked only when Fundamental Rights are violated3. It has been held
that if a right, other than a fundamental right is claimed to be violated then such questions can be
addressed only in the appropriate proceedings and not on an application under Art. 324. In the instant
case, there has been no direct and inevitable effect on the fundamental rights. 5 Further any violation
of fundamental right as claimed by the Petitioner is non-existing and illusionary. It is submitted hat
there is no violation of fundamental rights.
1.1.1.1 That fundamental rights u/a 14 and 15 have not been violated in the instant case
It is humbly submitted that Art. 14 of the Indian Constitution envisage equal protection or equal
treatment in similar circumstances6. Art. 14 is a basic structure.7 The requirement of the validity of a
law with reference to Art. 14 is that it should not be arbitrary and classification should be reasonable8.
1
Article 32, Constitution of India.
2
Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539 ¶ 10; Guruvayur Devaswom
Managing Committee v. CK Rajan and Ors. (2003) 7 SCC 546 ¶ 50; BALCO Employees Union (Regd.) v. Union of India,
(2002) 2 SCC 333.
3
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S Subbramani,
Justice B.P Banerjee, 8th Ed. 2008).
4
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
5
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745.
6
Tinkushia Electric Supply Co. v. State Of Ass. , AIR 1990 SC 123.
7
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.
8
Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403, 411.
Equality before the law or Equal protection of the Laws does not mean the same treatment to
everyone. As no two human beings are equal in all respects, the same treatment to them in every
respect would result in unequal treatment.
The Supreme Court has time and again reiterated that Art. 14 does not rule out the classification for
purposes of legislations. In Kedar Nath Bajoria v. State of W.B.9, it was held:
“The equal protection of the laws guaranteed by Art. 14 of the Constitution does not mean that all the
laws must be general in character and universal in application and that the state is no longer to have
the power of distinguishing and classifying persons or things for the purposes of Legislation. A valid
classification does not require mathematical nicety and perfect equality. Nor does it require identity
of treatment. If there is similarity or uniformity within a group, the law will not be condemned as
discriminatory, if due to some fortuitous circumstances arising out of a particular situation some
included in a class get an advantage over others, so long as they are not singled out for special
treatment.”
Further, it is also submitted that the only case law that interpreted ‘sex’ as inclusive of ‘sexual
orientation’ in Art. 15(1)10 was overruled by the Hon’ble SC11. Further any violation of Fundamental
Right as claimed by the Petitioner is non-existing and illusionary.
1.1.1.2 The term ‘sex’ as used u/a 15(1) cannot be interpreted so as to include “sexual orientation”
It is submitted that the interpretation of Art. 15 (1) to include“sexual orientation” would be faulty and
improper. Such an interpretation would by its very nature imply the acceptance of alternative forms of
sexual orientation which would go against community values and traditional norms of society.
1.1.1.2.1Negative impact on the institution of ‘marriage’

In Indian society, marriage is perceived as a system of roles of a man and a woman whose union has
been given social sanction as a husband and wife.12In contemporary societies, marriage is sometimes
interpreted more liberally and includes cohabitation also.13However, that even this more liberal
definition usually excludes homosexual couples14. Therefore, including “sexual orientation” would
lead a threat and danger to the society’s most fundamental social institution.15
9
AIR 1953 SC 404, 406: 1954 SCR 30.
10
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
11
Naz Foundation v. Government of N.C.T. Of Delhi, 160 (2009) DLT 277.
12
Ram Ahuja, Society in India, 114, (1st Ed.1999).
13
S. Khushboo v. Kanniammal & Anr ., Criminal appeal No. 913, (Supreme Court, 18/03/2016); Madan Mohan Singh &
Ors v. Rajni Kant & Anr., Civil Appeal No. 6466, (Supreme Court, 14/03/2016); D. Velusamy v. D. Patchaiammal,
Criminal Appeal No. 2028-2029, (Supreme Court, 15/05/2010).
14
Gloria A. Marshall, Marriag and Divorce, Encyclopedia of Latin American History and Culture (2008),
http://www.encyclopedia.com/doc/1O88-marriage.html.
15
Rhoda E. Howard, Gay rights and right to a family, 23 Human Rights Quarterly, 2001.
1.1.1.2.2 Negative impact on the institution of ‘family’
The definition of "family" changes as the needs of the greater society change. 16 In today’s liberal
society, social institutions have been reduced severely17 and people define families for themselves.18
In religious societies, the family is a reproductive or a biological unit consisting of a man and a
woman having a socially approved sexual relationship.19
Henceforth, it is submitted that the Indian society is not ready to acceptsuch an interpretation of the
word ‘sex’ in the current scenario.
1.1.1.2.3Negative impact on other constituting elements of society
Empirical research and clinical experiences clearly demonstrate that households with a homosexual
behaving adult member inherently [1] impose unique harms of profound stressors on children, [2] are
substantially less stable than heterosexual families, and [3] deprive children of the needed benefits of
having relatively better psychologically adjusted adult family member (mother and father).20
There are also differences in sexual behaviour and practices by children raised by homosexual
parents. They follow the role modelling of their parents in homosexuality. 21This will also relate to the
right to adopt a child by homosexual couples.22
1.1.1.3 Potential negative impacts of expansive interpretation of art. 15 on public health
Sexual relationships between members of the same sex, however, expose gays, lesbians and bisexuals
to extreme risks of STDs, physical injuries, mental disorders and even a shortened life span.
Henceforth, it is submitted that considering all the aforementioned authorities and arguments, the
respondent pleads that the word ‘sex’ u/a 15 should not be interpreted to include ‘sexual orientation’
and the order was within the constitutional ambit of Art. 14 and not arbitrary in any sense.
1.1.1.4 That fundamental right u/s 21 has not been violated

It is respectfully submitted that if same sex marriage will be allowed, then the family system which is
the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally
16
Gordon Neal Diem, The Definition of "Family" in a Free Society, Libertarian Nation Foundation (Jul 23, 2018)
http://libertariannation.org/a/f43d1.html.
17
Stuart Butler, Why Strong Social Institutions Are Needed to Survive Economic Growth,The Heritage Foundation (Oct
28, 1997) http://www.heritage.org/research/lecture/why-strong-social-institutions-are-needed.
18
Supra 16.
19
Kuljit Kaur, Legal Education and Social Transformation, WBNUJS (2010).
20
George A. Rekers, Review of Research on Homosexual Parenting, Adoption, And Foster Parenting,
http://www.catholiceducation.org/articles/homosexuality/ResearchReviewHomosexualParenting.pdf.
21
Larrry Houston, Homosexual Parenting Myth, Chapter 11, 26/05/2007, http://banap.net/spip.php?article82.
22
Supra 41.
affected and rampant homosexual activities for money would tempt and corrupt young Indians into
this trade. Such acts are undignified and derogatory to the constitutional concept of dignity and if any
infraction is caused to the concept of dignity, then it would amount to constitutional wrong and
constitutional immorality.
It has been further submitted that section 4c of Special Marriage Act has been incorporated after
takingnote of the legal systems and principles which prevailed in ancientIndia and now in 2018, the
said Section is more relevant legally,medically, morally and constitutionally and therefore there is not
violation of Article 21 of the Constitution of India.
The Counsel for the Respondent has relied for their aforesaid contention on the case of Suresh
Kumar Koushal and Anr. Vs Naz Foundation and ors23, wherein it was held that there is a
presumption of constitutionality of a legislation and the Court must adopt selfrestraint and thereby
refrain from giving birth to judicial legislation. In the applicant's view, the legislative wisdom of the
Parliament must be respected and it must be left to the Parliament to amend Section 4(c), if so
desired.
To illustrate this, the counsel has drawn the attention of thisCourt to W. Friedmann from 'Law in a
Changing Society' wherein hehas observed that to prohibit a type of conduct which a particularsociety
considers worthy of condemnation by reasonable restrictions is deeply influenced by the values
governing that society and it,therefore, varies from one country to another and one period ofhistory to
another.
The Respondent has further contended that since fundamental rights arenot absolute, there is no
unreasonableness in the decision of Marriage Officer and in case the same sex marriage would be
permitted, the same would run foul to all religiouspractised inthe country, and, while deciding the
ambit and scope of constitutionalmorality, Article 25 also deserves to be given due consideration.
1.2 EXISTENCE OF AN ALTERNATIVE REMEDY

It has been held that Art. 32 confers ‘extraordinary jurisdiction’, the same must be used sparingly and
in circumstances where no alternative remedy is available.24 Art. 32(1) confers a right to move the SC
by ‘appropriate proceedings’. Appropriate proceedings include procedural factors such as res
judicata, delay in filing the petition and parallel proceedings 25 in another Court. The petitioner in the
instant case had an alternate remedy in the form of writ petition to approach the High Court.26
23 (2014) 1 SCC 1
24
Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583; Avinash Chand Gupta v. State of Uttar
Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
25
Durga Das Basu, Shorter Constitution of India, 396 (13th ed., 2001).
26
Article 226, Constitution of Indian.
It is submitted that in the apparent case, the petitioners had an alternative remedy to approach the
High Court u/a 226 of the Indian Constitution. The power of High Court u/a 226 is wider than the
powers of this Court u/a 32 of the Constitution.
Moreover, Sec. 8(2) of the Special Marriage Act, 1954 provides that if the Marriage Officer upholds
the objection raised u/s 7 and thereby refuses to solemnize the marriage, either party to the intended
marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the
district Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the
decision of the district Court on such appeal shall be final, and the Marriage Officer shallact in
conformity with the decision of the Court.
In the light of the arguments advanced, it is thereby contended that the said petition must fail. The
petitioners in the apparent case do not have locus standi to approach this Hon’ble Court since, firstly,
there is no violation of fundamental rights and secondly, the existing alternative remedies have not
been exhausted .

ISSUE 2: WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO SOLEMNISE

THE MARRIAGE IS VALID OR NOT?
It is humbly submitted before this Hon’ble Court that the refusal of the Marriage Officer to solemnize
the marriage of the petitioners, Anershi and Bherni is based on the following objections raised by Fr.
Samuel-
1. That same-sex marriages are against contemporary social morality.
2. That same-sex marriages are not permissible under the Special marriage act, 1954 being in
contravention of Sec. 4(c) of the said Act.
It is thereby contended that the decision of the Marriage Officer is valid and in consonance with the
law of the land and the existing state of social morality in the country.
2.1 SAME SEX MARRIAGES ARE AGAINST CONTEMPORARY SOCIAL MORALITY
Societies evolve and change in ways that sometimes make it important to bring about changes in
human institutions more consistently with enlightened understanding. Nevertheless, just as not all
historical elements of marriage were wise and good, not all social change is progress, and not all
changes in our understanding of the meaning of marriage have resulted in unalloyed good.
Seven arguments have been raised before the Marriage Officer by Fr. Samuel to back the contention
that same sex marriages are against contemporary social morality.
2.1.1 Children’s hunger for their biological parents.
Homosexuals often use Assisted Reproductive Techniques (ARTs) such as in vitro fertilization (IVF)
and surrogacyarrangements for procreation and create a class of children that live away from their
mothers or fathers. Assisted Reproductive Technique is a very complex and expensive process for all
couples especially the same sex couples. As a result of the complications faced while using ART, it is
only used a means of last resort if a couple cannot procreate naturally. However for the homosexual
couples ART is the only means to procreate. Lesbians can procreate using IVF or surrogacy and gays
can procreate using surrogacy only. This leaves very little scope for the gays to procreate as surrogacy
being the only means is prohibited in many countries, indirectly creating a class of people that will
live without fathers.
ART is not for everyone, and barriers to treatment are a very real factor to many couples, gay or
straight. For example, the financial costs associated with treatment often running to thousands of
dollars are prohibitive to many. Another prohibitive factor for many is their geographical location,
where information about how to proceed with such a parental quest may be lacking and, worse yet,

access to treatment and treatment centers may not exist, especially in some very rural parts of the
country.
Perhaps the most egregious barrier for gay couples seeking ART is when there is access to treat-
ment, but it is not available to gay couples. For example, while lesbians commonly are welcomed by
fertility treatment centers, the issue is often quite different for gay men. Gay men seeking par-
enthood through ART using an egg donor and a gestational surrogate are not always welcomed by
fertility treatment centers. For example, a survey of 369 fertility centers in 2005 revealed that most
programs (79 %) routinely accept lesbians for treatment but are less likely to accept gay men.27
In the landmark case of Obergefell v. Hodges28, Justice Alito, in his dissenting opinion, summarizes
the five justices’ grand and abstract portrait of marriage by stating that: “Although the Court
expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to
promote the well-being of those who choose to marry.This understanding of marriage, which focuses
almost entirely on the happiness of persons who choose to marry, is shared by many people today, but
it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only
an opposite-sex couple can do: procreate.”12
2.1.2 Importance of paternal commitment
It is submitted that the recognition of paternity makes it possible for the father to care for his own
children, which includes caring for their mother, his mate. The recognition of “patrilineal kin” also
made it possible to “move forward and establish peaceful relations with other groups.”29
Other aspects of homosexual relationships make same-sex couples less likely to be good parents.
Heterosexual relationships are more durable. The bond between woman and man is rooted in the
biological need to nurture human infants for a long time.30Human society resulted from “the stable
breeding bond between a father and mother which provided a reliable means for the father to
recognize his offspring and for an offspring to recognize his father” The needs of human life demand
many things which cannot be provided by one person alone. Therefore, it is appropriate to human
nature that a man remain together with a woman after the generative act, and not leave her
immediately to have such relations with another woman, as is the practice with fornicators.31
2.1.3 Gendercomplementarity in parenting
“Marriage is based on the anthropological truth that men and women are complementary, the
27
Dorothy A. Greenfeld & Emre Seli, Assisted Reproduction in Same Sex Couples: Dorothy A. Greenfeld and Emre Seli.
28
135 S. Ct. 2584 (2015).
29
Nicholas Wade, Supremacy of a Social Network, N.Y. TIMES, Mar. 14, 2011, at D4 (quoting Dr. Bernard Chapais).
30
BERNARD CHAPAIS, PRIMEVAL KINSHIP: HOW PAIR-BONDING GAVE BIRTH TO HUMAN SOCIETY 27
(2008)
31
ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES, Bk. 3:II, Ch. 122 (Vernon J. Bourke trans., Image Books
1956
biological fact that reproduction depends on a man and a woman, and the social reality that children
need a mother and a father”32
It is submitted that both mother and father are important for the rearing of the child. Gender
complementarity has been the ideal traditional way of family structure. The benefits and
consequences of the new family structure having only fathers or only mothers are unknown and
risky.Redefining marriage to abandon the norm of male–female sexual complementarity would also
make other essential characteristics such as monogamy, exclusivity, and permanency optional.
As science reporter Paul Raeburn describesthat mothers and fathers each contributed something in
their genes that was critical to sustaining life. The need for both a mother and a father to provide
genetic material for survival parallels what social science tells us about the importance of mothers and
fathers in children’s development. Fathers and mothers bring similar, even indistinguishable,
capacities that enable healthy child development. But like the complementarity of the left and right
halves of the brain, they also seem to bring distinct capacities that provide crucial, complementary
contributions to children’s healthy development. Women and men have substantially different
hormonal, neurological, cognitive, and emotional systems that influence identity and behavior
throughout the life course. Children are best raised by someone who have endowed them with their
biological gender. When we separate the biology from the environment in parenting, we will have
extra challenges, as is seen by the sometimes perplexing, negative outcomes for adopted children
raised by loving parents with all the good family resources we could hope for.
Redefining marriage to abandon the norm of male–female sexual complementarity would also make
other essential characteristics—such as monogamy, exclusivity, and permanency—optional.
Just as the complementarity of a man and a woman is important for the type of union they can form,
so too is it important for how they raise children. There is no such thing as “parenting.” There is
mothering, and there is fathering, and children do best with both. While men and women are each
capable of providing their children with a good upbringing, there are, on average, differences in the
ways that mothers and fathers interact with their children and the functional roles that they play.33
Marriage is a uniquely comprehensive union. It involves a union of hearts and minds, but also—and
distinctively—a bodily union made possible by sexual complementarity. As the act by which a
husband and wife make marital love also makes new life, so marriage itself is inherently extended and
enriched by family life and calls for all-encompassing commitment that is permanent and exclusive.
32
Marriage: What It Is, Why It Matters, and the Consequences of Redefining It Ryan T. Anderson
2013
33
Raeburn, P. (2014). Do fathers matter? What science tells us about the parent we’ve overlooked. New York: Scientific
American
In short, marriage unites a man and a woman holistically, emotionally and bodily, in acts of conjugal
love and in the children such love brings forth for the whole of life.34
Every child in a homosexual house has lost at least one biological parent. Loss of a parent is
universally regarded as a great misfortune. If the child has one biological parent, the other adult is a
stepparent. In fables, stepparents are typically hostile to their step-children.35Homosexual couples
with children often experience competition or jealousy over parenting, and the children often exhibit a
preference for or “primary bond” with one parent.36If one is the child’s biological parent, it would be
natural for the child to identify the other as secondary, or as not a true parent at all.37
Alternatively, the child in a homosexual house has lost both parents. This is universally regarded as a
tragedy. Adoption can be a great blessing for children whose parents are unable or unwilling to care
for them, but even adoption by a traditional married couple is not equal to the biological family.38If
same-sex couples are just as good as biological parents, then, they must be better than traditional
34
Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York:
Encounter Books, 2012.
35
BRUNO BETTELHEIM, THE USES OF ENCHANTMENT: THE MEANING AND IMPORTANCE OF FAIRY
TALES 66–73 (1975) (discussing “The Fantasy of the Wicked Stepmother”). Cf. W. Bradford Wilcox, Suffer the Little
Children: Cohabitation and the Abuse of America’s Children, THE WITHERSPOON INST. (Apr. 22, 2011),
http://www.thepublicdiscourse.com/2011/04/3181 (discussing high rates of child abuse among cohabiting adults).
Children living with a married stepparent probably fare no better than children living with a cohabiting adult. See Susan L.
Brown, Family Structure and Child Well-Being: The Significance of Parental Cohabitation, 66 J. MARRIAGE & FAM.
351, 364 (2004) (“Regardless of whether a parent remarries or forms a cohabiting stepfamily, negative child outcomes are
similar.”); ANDREW J. CHERLIN, THE MARRIAGE-GO-ROUND 5 (2009) (“Children whose parents have remarried
do not have higher levels of well-being than children in lone-parent families”).
36
Susanne Bennett, Is There a Primary Mom? Parental Perceptions of Attachment Bond Hierarchies Within Lesbian
Adoptive Families, 20 CHILD & ADOLESCENT SOC. WORK J. 159, 166–69 (2003); Claudia Ciano-Boyce & Lynn
Shelley-Sireci, Who Is Mommy Tonight? Lesbian Parenting Issues, 43 J. HOMOSEXUALITY, no. 2, 2002.
37
Louis DeSerres, Preserve Marriage—Protect Children’s Rights (Canada), in WHAT’S THE HARM?, supra note 5, at
103, 106 (“This biological imbalance can also be the source of numerous tensions and conflicts that are not likely to
benefit the child . . . .”). In heterosexual couples “a stepparent [or] cohabiting partner often occupies ambiguous family
roles characterized by little trust and authority, particularly from the child’s standpoint.” Brown, supra note 21, at 354.
There is no reason to think that this problem would not also occur in same-sex couples.
38
Matthew D. Bramlett et al., The Health and Well-Being of Adopted Children, 119 PEDIATRICS S54, S54 (Supp. 2007)
(finding that, compared to biological children, adopted children are more likely to have a myriad of health problems);
David M. Brodzinsky, Long-Term Outcomes in Adoption, 3 FUTURE CHILDREN 153, 153 (1993) (“A selective review
of the literature indicates that, although most adoptees are well within the normal range of functioning, as a group they are
more vulnerable to various emotional, behavioral, and academic problems than their nonadopted peers living in intact
homes with their biological parents.”); Gail Slap et al., Adoption as a Risk Factor for Attempted Suicide During
Adolescence, 108 PEDIATRICS e30, e30 (2001) (“Attempted suicide is more common among adolescents who live with
adoptive parents than among adolescents who live with biological parents.”); Michael Wierzbicki, Psychological
Adjustment of Adoptees: A Meta-Analysis, 22 J. CLINICAL CHILD PSYCH. 447, 447 (1993) (describing a meta-
analysis of sixty-six published studies finding that adoptees had significantly higher levels of maladjustment, externalizing
disorders, and academic problems than nonadoptees).;SHARON VANDIVERE & KARIN MALM, U.S. DEP’T OF
HEALTH & HUM. SERVICES, ADOPTION USA: A CHARTBOOK BASED ON THE 2007 NATIONAL SURVEY
OF ADOPTIVE PARENTS 5 (2007), which found inter alia: Compared to the general population of children, adopted
children are more likely to have ever been diagnosed with—and to have moderate or severe symptoms of— depression,
ADD/ADHD, or behavior/conduct disorder. Parental aggravation (for example, feeling the child was difficult to care for,
or feeling angry with the child) is more common among parents of adopted children than among parents in the general
U.S. population (11 compared with 6 percent).
married couples as adoptive parents. There is no empirical or inductive evidence to suggest that this is
true.
Adopted children often crave knowledge of, and contact with, their biological parents and are
challenging laws that prevent them having it.39In effect, these children assert the natural importance
of blood ties and a human right of access to their biological parents. The law increasingly
acknowledges such a right. The Convention on the Rights of the Child, for example, recognizes the
right of every child, “as far as possible . . . to know and be cared for by his or her parents.”40
Because homosexual couples cannot biologically create children, however, the SSM movement must
de-emphasize the importance of blood ties and any right of children of access to their biological
parents.41
2.1.4 Children raised by homosexuals are more likely to experience gender and sexual disorders.
The claim that living with a same-sex couple does not affect a child’s sexuality is implausible. “It
would be surprising indeed if children’s own sexual identities were unaffected by the sexual identities
of their parents.” Even young children may sense, or be told by others, that their guardians are
unusual, ‘queer’ hereby beginning their sexualization at an unusually early age. There is evidence that
children raised by homosexuals are more likely to engage in homosexuality and to feel confused
about their sexual identity.42
39
PATRICK F. FAGAN, FAM. RESEARCH COUNCIL, ADOPTION WORKS WELL: A SYNTHESIS OF THE
LITERATURE 13 (2010), available at http://downloads.frc.org/EF/EF10K39.pdf (“At some stage, adopted children
commonly desire to get to know their birth mother.”); MARGARET SOMERVILLE, THE ETHICAL IMAGINATION:
JOURNEYS OF THE HUMAN SPIRIT 149 (2006) [hereinafter SOMERVILLE, THE ETHICAL IMAGINATION]
(asserting “children’s rights to both a mother and a father, preferably their own biological parents, and to be reared by
them, unless there are good reasons to the contrary in the ‘best interests’ of a particular child”); Margaret Somerville,
Children’s Human Rights to Natural Biological Origins and Family Structure, 1 INT’L J. JURISPRUDENCE FAM. 35,
44 Somerville, Children’s Human Rights, 2010 (“It is now being widely recognized that adopted children have the right to
know who their biological parents are whenever possible, and legislation establishing that right has become the norm.”);
David Crary, Sperm-Donors’ Kids Seek More Rights and Respect, MSNBC.COM (Aug. 16, 2010, 7:52 AM),
http://www.msnbc.msn.com/id/38679526 (noting children are “keenly curious” about the men who helped give them life);
Vardit Ravitsky & Joanna E. Scheib, DonorConceived Individuals’ Right to Know, BIOETHICS FORUM (July 20, 2010,
2:22 PM), http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=4811&blogid=140 (“trend towards making
donor identities available is gathering momentum as a growing number of countries adopt laws and regulations banning
anonymity.”).
40
Convention on the Rights of the Child, G.A. Res. 44/25, Annex, U.N. GAOR, 44th Sess. Supp. No. 49, U.N. Doc.
41
WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 11 (1999); Susan
F. Appleton, Gender and Parentage: Family Law’s Equality Project in Our Empirical Age, in WHAT IS PARENTHOOD?
(forthcoming) (manuscript at 6–7), available at http://ssrn.com/abstract=1628232 (arguing for “standards that accord legal
recognition to those who perform a family relationship, even in the absence of formal or biological connections”); David
Blankenhorn, Protecting Marriage to Protect Children, L.A. TIMES, Sept. 19, 2008, at A27 (“Every child being raised by
gay or lesbian couples will be denied his birthright to both parents who made him.”); Jerry Mahoney, Mom/Not
Mom/Aunt, N.Y. TIMES, July 18, 2010, at ST6 (ruminating that eggs donated by the sister of a homosexual partner are a
gift “more valuable than just a genetic link to our offspring”).
42
Nanette K. Gartrell et al., Adolescents of the U.S. National Longitudinal Lesbian Family Study: Sexual Orientation,
Sexual Behavior, and Sexual Risk Exposure, 40 ARCH. SEXUAL BEHAV. 1199 (2011) (study finding that children
raised by same-sex couples are much more likely than others to identify as at least partly homosexual and to engage in
homosexual acts); Richard E. Redding, It’s Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the
New research findings raise significant concerns about how being raised by same-sex parents affects
children and provide ample reason to slow the rush to redefine marriage. If, as the latest and most
rigorous studies find, children living with same-sex married couples are at significantly higher risk for
abuse or other negative outcomes, it is essential that political or judicial action take into account their
best interests as well as those of their adult caregivers.
Dr. Donald Paul Sullins, a professor of sociology at the Catholic University of America, recently
published a series of studies43 that are among the most methodologically sound on the subject of
same-sex parenting. He employs the National Health Interview Survey, a large, statistically
representative survey containing various measures of physical and mental health, along with
appropriate demographic control variables, that the Centers for Disease Control and Prevention has
conducted since 1957. Using the most recent data, from 1997 to 2013, out of 207,007 children, he
finds 512 (or 0.25 percent) whose parents were in same-sex married or cohabiting relationships at the
time of the survey.
Controlling for child sex, age, and race and parents’ education and income, Dr. Sullins finds that
children of parents in same-sex relationships fare significantly worse than those of opposite-sex
parents on nine of 12 measures of emotional or developmental problems and their use of mental
health treatment. In general, children of parents in same-sex relationships are about two to three times
more likely to experience such problems.
In his most extensive statistical analysis, in which he also takes into account relationship stability,
stigmatization, and parents’ psychological distress, Sullins finds the prevalence of emotional
problems among children living with same-sex parents to be 4.5 times as high as among children
living with their married biological parents, three times as high as children living with a married
stepparent, 2.5 times as high as those with cohabiting parents, and three times as high as children with
a single parent.
Psychology of Disgust, 15 DUKE J. GENDER L. & POL’Y 127, 149 (2008) (“Available studies provide evidence that
children . . . raised by lesbigay parents are more likely to experience homoerotic attraction, to engage in homosexual
relationships, and to show gender non-conforming behaviors.”); Walter R. Schumm, Children of Homosexuals More Apt
To Be Homosexuals? A Reply to Morrison and to Cameron Based on an Examination of Multiple Sources of Data, 42 J.
BIOSOCIAL SCI. 721, 737 (2010) (concluding through meta-analysis that children raised by gay couples are more likely
than others to be gay); Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66
AM. SOC. REV. 159, 177–79 (2001) (finding that homosexuallyparented children are more likely to engage in
homosexual and bisexual behavior); Trayce Hansen, A Review and Analysis of Research Studies Which Assessed Sexual
Preference of Children Raised by Homosexuals (June 30, 2008), http://www.drtraycehansen.com/Pages/
writings_sexpref.html (concluding that studies by pro-homosexual researchers suggest homosexual parents raise
disproportionate numbers of non-heterosexual children).
43
Donald Paul Sullins, “Emotional Problems Among Children with Same-Sex Parents: Difference by Definition,” British
Journal of Education, Society and Behavioural Science, Vol. 7, No. 2 (January 25, 2015), pp. 99–120.

Further analyzing the data, he replaces the three variables mentioned in the previous paragraph with a
single variable measuring biological parentage44 and finds that:
Biological relationship, it appears, is both necessary and sufficient to explain the higher risk of
emotional problems faced by children with same-sex parents. The primary benefit of marriage for
children, therefore, may not be that it tends to present them with improved parents (more stable,
financially affluent, etc., although it does this), but that it presents them with their own parents….
Future research is needed to determine the mechanisms by which biological parentage affects child
emotional wellbeing. Furthermore, about a third of children raised by same-sex married parents report
having been sexually abused by a parent or caregiver prior to 6th grade, a rate more than five times as
high as children with any other category of parents, and among those who had ever had sex, about
two-thirds of those raised by same-sex married parents report having been forced to do so against
their will, a rate three to seven times as high as among those raised by any other category of parents.
The magnitude of these differences is so great that, despite a small sample size, they are statistically
significant, and further research is needed to determine their cause.
2.1.5 Same-sex marriage would undercut the norm of sexual fidelity within marriage.
It is submitted that sexual infidelity is very high amongst the same sex couples which undercuts the
norm of sexual fidelity in marriage. For either parent to have sex outside the marriage can disrupt
their bond by creating competing demands from other children and the other parents. It would be
astonishing if the bond between same-sex couples, which has no biological basis, just coincidentally
equaled this natural bond, a product of a million years of evolution. The animal kingdom is
instructive. In some species male and female mate for life; in many they do not. But in no species do
members of the same sex mate for life. Homosexuals have less reason to bond as couples and, when
they do, less reason for the bond to be enduring and exclusive. Not surprisingly, then, homosexuals
are less inclined than heterosexuals to marry,and gays who do marry have a high divorce rate.45
In a recent study of gay male couples, 41.3% had open sexual agreements with some conditions or
restrictions, and 10% had open sexual agreements with no restrictions on sex with outside partners.
One-fifth of participants (21.9%) reported breaking their agreement in the preceding 12 months, and
13.2% of the sample reported having unprotected anal intercourse in the preceding three months with
an outside partner of unknown or discordant HIV-status46
44
Sullins, “Emotional Problems Among Children with Same-Sex Parents.”
45
Paul Ames, Dutch Gays Don’t Take Advantage of Opportunity to Marry, GLOBAL POST (Apr. 20, 2011)
46
Neilands, Torsten B.; Chakravarty, Deepalika; Darbes, Lynae A.; Beougher, Sean C.; and Hoff, Colleen C. (2010),
“Development and Validation of the Sexual Agreement Investment Scale,” Journal of Sex Research, 47: 1, 24 — 37, April
McWhirter and Mattison believe that gays must redefine “fidelity” to mean not sexual faithfulness,
but simply “emotional dependability.” Fidelity as such is only an abstraction, divorced from the
body. The agreement to have outside affairs precludes any possibility of genuine trust and
intimacy.Yet in reality, there remains a contradictory longing for greater stability. In a study of thirty
couples, Hooker, found that all but three couples expressed “an intense longing for relationships with
stability, sexual continuity, intimacy, love and affection”- but only one couple in her study had been
able to maintain a monogamous relationship for ten years. Hooker concluded, “For many
homosexuals, one-night stands or short-term relationships are typical”. The desire for sexual fidelity
in relationships and the benefits of such a commitment are universal. In the long history of man,
infidelity has never been associated with maturity. Even in cultures where it is relatively common, it
is no more than discreetly tolerated. Faced with the fact that gay male relationships are in fact
promiscuous, gay writers have no choice but to promote the message that monogamy is not
necessary.47
Given the fragility of homosexual relationships, children in these homes are more likely to suffer the
stresses of divorce and to learn that marriage is temporary, not a lasting relationship of trust. Every
child raised by a homosexual couple has already lost at least one biological parent, so a divorce may
cause heightened trauma. Given the frequent infidelity in homosexual couples, children in these
homes are more likely to witness conflict over infidelity and to see it as a normal part of marriage.
Given the frequent violence in homosexual couples, children in these homes are more likely to
witness such violence.
The central cause of gay promiscuity is to be found in the inherent sexual and emotional
incompatability between two males. Men were designed for women, and when some factor—
psychological, biological, or a combination of both—interferes with that wired-in design, the freedom
to marry a partner of the same sex cannot change the fact that “something’s not working.”
2.1.6Same-sex marriage would further isolate marriage from its procreative purpose.
It is submitted that several Courts have recognized the need to go beyond pointing to the traditional
exclusion of same-sex couples from marriage by giving a reason for retaining that exclusion or, more
precisely, for treating "same-sex marriage" as altogether different from "marriage" as such, so that the
fundamental right to marry does not encompass the right to marry someone of the same sex. In the
view of these Courts, same-sex couples cannot marry because the purpose of marriage is procreation
which everybody "knows" will never result from same-sex unions. In the words of the Court:
47
An Open Secret: The Truth About Gay Male Couples: Joseph Nicolosi, Ph.D.

Marriage exists as a protected legal institution primarily because of societal values associated with the
propagation of the human race. Further, it is apparent that no same-sex couple offers the possibility of
the birth of children by their union. Thus the refusal of the state to authorize same-sex marriage
results from such impossibility of reproduction.48
When a couple make a commitment to each other to share their lives, in the type of community that
would be fulfilled by bearing and raising children together, then the biological unity realized in sexual
intercourse actualizes or concretizes that community. In sexual intercourse they unite (become one)
precisely in that respect in which their community is defined and naturally fulfilled. That is, they have
consented to a procreative-type of union; so their procreative-type acts embody their community.
Hence the sexual intercourse of spouses is not an extrinsic symbol of their love, nor a mere means in
relation to procreation, but embodies, or actualizes, their marital communion. In that way the loving
sexual intercourse of husband and wife instantiates a basic human good: the good of marital union.
One fear is that procreation itself would slow down, perhaps below the replacement rate, the level at
which humans must reproduce in order to stay ahead of deaths. This slowdown would eventually
imperil the species.49 One purpose of marriage is to create children for the survival of the species.50
Professor Doug Kmiec has also noted declining world population growth rates in connection with the
procreation argument against gay marriage. The potential procreative harm of recognizing same-sex
marriage is also magnified because the rate of world population growth has declined by more than
40% since the late 1960s. The other fear is that, as the connection between marriage and procreation
is loosened, procreation may increasingly occur outside ofmarriage.51
2.1.7 De-gendering of marriage

Social institutions shape human behavior. They provide human relationships with meaning, norms,
and patterns; they encourage and guide conduct. And when the definitions and norms of a social
institution are altered, the human behaviors and interactions that the institution shapes also change. As
the Court admits, marriage may be society’s most enduring and essential institution. As with any
institution, changing the basic definition and social understanding of marriage such as by nullifying
its gendered understanding will change the behavior of men and women in marriage and may even
48
Singer v. Ham, 522 P.2d 1187, 1195 (Wash. Ct. App.), review denied, 84 Wash. 2d 1008 (1974))
49
Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 LA. L. REV. 773,789 (2002)
50
Maggie Gallagher, Rites, Rights, and Social Institutions: Why and How Should the Law Support Marriage?, 18 NoTRE
DAME J.L. ETHics & PuB. POL'Y 225 (2004)
51
Gallagher, Does Sex Make Babies?, supra note 45, at 465-71 (stating that traditional marriage encourages a link
between procreation and marriage
affect whether they enter marriage in the first place. Whether deemed good or bad, legally necessary
or unnecessary, redefining marriage away from its historically gendered purposes will have
significant consequences.52
Although marriage serves many private ends, its institutional nature means that it is not merely a
private arrangement.53As an institution, it exists also to shape and guide human behavior to serve
important social and public purposes. Traditionally, those public purposes have centered on uniting a
man and a woman to order their sexual attraction and behavior and maximize the welfare of their
children.54
Far from being a relic of history or a quaint custom that has outgrown its usefulness in modern
society, gender is a crucial component of not only the meaning of marriage for most people but of
how marriage produces its benefits for children and society. In fact, it may be more crucial now than
it has ever been because of changes that already have occurred in the meaning of marriage over the
past five decades that have dramatically diminished many men’s bonds to their children and their
children’s mother.
2.1.8 Fewer and less stable marriages in the absence of fathers

Redefining marriage in genderless terms will undermine the State’s interest in encouraging
heterosexual fathers to marry the mothers of their children. As we have argued, if men no longer view
marriage as central to defining their adult identities—if they see themselves as unnecessary to the
intrinsic meaning and purpose of marriage and thus view marriage as optional to their sense of
maleness—they will be less likely to marry, even when they become fathers. Marriage, in other
words, will simply be less relevant to men and thus less attractive to them. In an already highly
individualistic culture such as ours, men will be more likely to seek to establish their adult identities
through other means, such as career and financial success, personal pursuits, leisure activities, and
non-marital sexual relationships. The children of such men will be less likely to be raised by their
fathers and will suffer as a result.
Redefinition will also undermine the state’s interest in encouraging married heterosexual fathers to
remain married for the benefit of their children despite marital difficulties. “Until the current
generation, the widely held (and now empirically supported) belief that children needed their fathers
52
Same-sex Marriage: Gender Complementarity vs. Gender Irrelevance Alan J. Hawkins, Jason S. Carroll, Jenet J.
Erickson, Dean M. Busby, & Mark H. Butler
53
Nock, S. L. (2005). Marriage as a public issue. Future of Children, 15(2), 13–32.
54
Girgis, S., Anderson, R. T., & George, R. P. (2012). What is marriage? Man and woman: A defense. New York:
Encounter Books
was a central tenet in social norms encouraging men to work through marital troubles with their
wives”55
“This retreat from the ideal may be particularly devastating for the family involvement and parenting
of men who, according to research, are more reliant on such social and relationship supports to foster
their healthy involvement in family life and parenting.”Studies have found that most divorces come
from lowconflict marriages and that the children in these families do worse when their parents’
divorce compared to children whose parents are able to sustain the marriage. Also, most unhappy
marriages become happy again if given time, further benefitting their children. A gendered definition
of marriage and parenting emphasizes that fathers are important and unique in the lives of their
children. And this perspective helps men see that their children are stakeholders in their marriages and
discourages divorce. Same-sex marriage denies that men are essential to marriage and thus that
fathers are essential in the lives of their children, replacing this cultural ideal with the idea that two
parents regardless of gender are equivalent, which will increase the likelihood that fewer heterosexual
fathers stay married for the sake of their children.
The Counsel concludes the first contention that same-sex marriages are against contemporary social
morality with the following notes-
1. If the state does not recognize marriage as the union of a man and a woman in a relationship that
is naturally fulfilled by bearing and rearing children together, then it fails to affirm that this
community is the situation most suitable in which to bear and rear children.
2. If the state fails to affirm that marriage is the context best suited to the bearing and rearing of
children, then the rights of children to the protection, care, and nurturing of their own biological
parents are less likely to be met (than would otherwise be the case).
3. Ifsame-sexunionsaredeclaredtobeequivalenttomarriage,then the state does not recognize marriage
as the union of a man and a woman in a relationship that is naturally fulfilled by bearing and
raising children together.
4. Therefore, if same-sex unions are declared to be equivalent to marriage, then the rights of
children to the protection, care, and nurturing of their own biological parents are less likely to be
met (than would otherwise be the case).
5. The state ought to ensure that the rights of children to the protection, care, and nurturing of their
own biological parents is more likely to be met.
6. So, the state ought not to declare that same-sex unions are equivalent to marriage.
55
Jason S. Carroll & David C. Dollahite, Who’s My Daddy? How the Legalization of Same-Sex Partnerships Would
Further the Rise of Ambiguous Fatherhood in America in WHAT’S THE HARM? Does Legalizing same-sex marriage
really harm individuals, families, or socieites? 62 (Lynn Wardle ed., 2008).

2.2 SAME SEX MARRIAGE CANNOT BE SOLEMNIZED UNDER THE SPECIAL

MARRIAGE ACT, 1954
It is humbly submitted before this Hon’ble Court that same sex marriages cannot be solemnized under
the Special Marriage Act, 1954 being in contravention of Sec. 4(c) of the said Act.
2.2.1INTERPRETATION OF THE WORD ‘AND’ U/S 4(c) OF THE SAID ACT
Sec. 456 of the Special Marriage Act, 1954 provides for the conditions relating to solemnization of
special marriages. While Sec. 4(c), in particular, specifies that the age of the bridegroom and the bride
at the time of marriage. The word used ‘and’ in the said clause clearly lays down that for the
solemnization of marriage under the Act, the intending parties to the marriage have to be of opposite
sex i.e. a male and a female. This rules out the solemnization of marriage between same sex couples
from its purview.
According to the literal rule of interpretation, the words used in a statute should be interpreted in the
ordinary, literal sense of the word as understood by the common man. Dictionary or technical
meaning to the word must not be attributed to the natural meaning of the word. In the case of
Manmohan Das v Bishan Das AIR 1967 SC 653, It was argued by the appellant that the word ‘or’
must be interpreted as ‘and’ u/s 317 of the UP Control of Land and Eviction Act, 1947 and only that
construction should be covered which materially alters the accommodation ‘and’ diminishes its value.
(Section 317 of the UP Control of Land and Eviction Act,1947 read as: “a tenant was liable to be
evicted if he raised unauthorized construction in the property which has materially altered its
contruction ‘or’ is likely to diminish its value.”)
The Court held that the word ‘or’ must be given its natural and literal meaning which implies that the
two grounds
56
“Conditions relating to solemnization of special marriages.—Notwithstanding anything contained in any other law
for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be
solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:—
(a) neither party has a spouse living; 1[(b) neither party—
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent
as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity 2[***];]
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
3[(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one
of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within
the degrees of prohibited relationship; and] 4(e) where the marriage is solemnized in the State of Jammu and Kashmir,
both parties are citizens of India domiciled in the territories to which this Act extends]. 5[Explanation.—In this section,
“custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State
Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe,
community, group or family: Provided that no such notification shall be issued in relation to the members of any tribe,
community, group or family, unless the State Government is satisfied—
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.]
Hence the respondent humbly contends that the word ‘and’ used u/s 4(c) if the said act cannot be used
otherwise than its literal meaning.
2.2.2TRADITIONAL CONCEPT OF MARRIAGE:
Traditionally, marriage has always been meant to be an exclusive union between a man and a woman
and it implies that they will live with each other in harmony and in mutual confidence.
Black’s Law Dictionary defines ‘marriage’ as-

Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the
civil status of one man and one woman united in law for life, for the discharge to each other and the
community of the duties legally incumbent on those whose association is founded on the distinction of
sex.
Marriage is one of the most important institutions of human society. It has been variously defined by
sociologists as well as by legal luminaries. Westermarck has defined marriage as a more or less
durable connection between male and female, lasting beyond the mere act of propagation till after the
birth of the offspring. George A. Lundberg defined marriage as a set of rules and regulations, which
define the rights, duties and privileges of the husband and wife with respect to each other.57
According to sociologist Mazumdar, “marriage is a socially sanctioned union of male and female for
the purpose of establishing (a) household (b) entering into sex relations (c) procreating and (d)
providing care for the offspring”. 58
TheHon’ble Supreme Court of India59 has held that the
relationship in marriage is considered to be love, affection, care and concern between the two
spouses.
2.2.3LEGISLATIVE INTENT BEHIND THE CONSTRUCTION OF THE ACT
It is humbly submitted before this Hon’ble Court that it is important to understand and analyse the
legislative intent behind the enactment of this act. The objects and statement of the act clearly state
that the special marriage act was enacted to solemnize marriage between Indians belonging to
different faiths or between Indians and foreigners. There was no intention to include same sex couples
in the said act. The constitutionality of any legislation is always to be presumed and if there is any
vagueness in the definition of any section, the Courts have to give such a definition which advances
the purpose of the legislation and that the Courts must make every effort to uphold the constitutional
validity of a statute if that requires giving a stretched construction in view of the decisions of this
57
George Andrew Lundberg, Sociology 133 (Harper and Brothers, New York, 1958).
58
H.T. Mazumdar, Grammar of Sociology, 502 (Asia Publishing House 1966).
59
Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121.
Court in K.A. Abbas v. Union of India and another60 and Rt. Rev. Msgr. Mark Netto v. State of
Kerala and others61.
Therefore in the light of the arguments advanced it is thereby contended that the decision of the
Marriage Officer not to solemnize the marriage of Anershi and Bherni under the Special Marriage
Act, 1954 is valid and justified.
60
(1970) 2 SCC 780 19
61
(1979) 1 SCC 23
PRAYER
Wherefore,inlightoftheissuesraised,argumentsadvanced,andauthoritiescited,maythis
Hon’ble Court bepleased to adjudge and declare:
1. That the refusal of the marriage officer to solemnize the marriage of Anershi and Bherni u/s 5
of the Special Marriage Act, 1954 is valid and justified.
2. That section 4(c) of the Special Marriage Act, 1954 is not discriminatory on the basis of
sexual orientation and hence not violative of articles 14 and 21 of the Constitution of India.
3. That there is no requirement to amend or legislate any new law for the solemnisation of the
Marriage of transgender people and same sex marriages.
AND/OR
Pass any otherOrder, Direction, or Relief that this Hon’bleCourt maydeem fit in the
interests of justice,equity and good conscience.
For thisact of Kindness,theRespondent, as in duty bound, shallhumblypray.
Place:Date
Sd/-
(Counselfor the Respondent)

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28th KLA ALL INDIA MOOT COURT COMPETITION 2019 (7th – 9th February 2019)

28TH ALL INDIA MOOT COURT COMPETITION 2019

BEFORETHE HON’BLE SUPREME COURT OF INDIA

PUBLIC INTEREST LITIGATION

IN THEMATTER OFARTICLES 14 &21OFTHECONSTITUTION OFINDIA AND SECTION 4(c)

ANERSHI & BHERNI…...…………….…...………………………..……....…..PETITIONER NO.

1FRIENDS OF LGBT……………………………………….…….....……..…..…PETITIONER NO.

MEMORIAL ON BEHALF OF THE RESPONDENT 1

MEMORIAL ON BEHALF OF THE RESPONDENT 2

INDEX OFAUTHORITIES .................................................................................................... 6

STATEMENT OF JUSRISDICTION .................................................................................. 10

STATEMENT OFFACTS ..................................................................................................... 11

STATEMENT OF ISSUES ................................................................................................... 13

ISSUE I: WHETHERTHE PETITIONERS HAVE THE LOCUS STANDI TO

ISSUE 2: WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO

MEMORIAL ON BEHALF OF THE RESPONDENT 3

MEMORIAL ON BEHALF OF THE RESPONDENT 4

MEMORIAL ON BEHALF OF THE RESPONDENT 5

MEMORIAL ON BEHALF OF THE RESPONDENT 6

MEMORIAL ON BEHALF OF THE RESPONDENT 7

1. The Constitution of India

[C] Articles and Reports

MEMORIAL ON BEHALF OF THE RESPONDENT 8

MEMORIAL ON BEHALF OF THE RESPONDENT 9

1. Obergefell v. Hodges 135 U.S 2584 (2015)

1. Article 7, Convention on the Rights of the Child

1. C.K. TAKWANI, LECTURESON ADMINISTRATIVE LAW 31 (2008)................. 20

2. CORWIN,THECONSTITUTIONAND WHATIT MEANS TO-DAY,78(1958).16

3. H.M. SEERVAI,CONSTITUTIONAL LAW OFINDIA: A

4. M PJAIN,INDIANCONSTITUTIONAL LAW (LexisNexis 7thed. 2014) .....................

MEMORIAL ON BEHALF OF THE RESPONDENT 10

Article 32 oftheConstitution reads as follows:

“32. Remedies for enforcement of rights conferred by this Part

MEMORIAL ON BEHALF OF THE RESPONDENT 11

BACKGROUND OF THE PARTIES

ANERSHI AND BHERNI

NOTICE TO THE MARRIAGE OFFICER

OBJECTIONS RAISED BY Fr. SAMUEL

1. Children’s hunger for their biological parents.

2. Children need fathers.

3. Children need mothers.

MEMORIAL ON BEHALF OF THE RESPONDENT 12

6. Same-sex marriage would further isolate marriage from its procreative

7. Same-sex marriage would further diminish the expectation of paternal commitment.

DECISION OF THE MARRIAGE OFFICER

PETITIONS BEFORE THE SUPREME COURT

MEMORIAL ON BEHALF OF THE RESPONDENT 13

WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO APPROACH

WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO SOLEMNISE THE

MEMORIAL ON BEHALF OF THE RESPONDENT 14

ISSUE I: WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO

ISSUE II: WHETHER THE REFUSAL OF THE MARRIAGE OFFICER TO SOLEMNISE

3 Same-sex marriages are against contemporary social morality.

MEMORIAL ON BEHALF OF THE RESPONDENT 15

MEMORIAL ON BEHALF OF THE RESPONDENT 16

ISSUE 1: WHETHER THE PETITIONERS HAVE THE LOCUS STANDI TO APPROACH

1.1.1.2.1Negative impact on the institution of ‘marriage’

1.1.1.2.3Negative impact on other constituting elements of society

1.1.1.3 Potential negative impacts of expansive interpretation of art. 15 on public health