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PremiumThe legal recognition of same-sex marriage in India is currently being discussed in a batch of petitions, presently being heard by a constitution bench of the Supreme Court on April 27.
The hearing on the plea for marriage equality in India continued on the fifth day in the Supreme Court on April 26. A bunch of at least 15 petitions were being heard. The Centre urged the top court to let Parliament deal with the questions raised in the petitions that seek legal approval for same-sex marriages.
Solicitor General (SG) Tushar Mehta represented the Centre and expressed that the case was a "very complex subject" that had a "profound social impact". The five-judge constitution bench was headed by Chief Justice of India (CGI) D Y Chandrachud.
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The arguments are set to resume next week on May 3.
As SG Mehta noted that the act covered 'all spectrums and shades' the Chief Justice note that lesbians or gay individuals were not 'transgenders'. Mehta had tagged such individuals as ‘gender queer’.
“You may be correct in saying that the definition of transgender persons covers the entire spectrum but gays and lesbians are completely different…Cis gender is a gender you're born with. Now, there may be some variations but as a principle- lesbians belong to the cis gender category because there is no reassignment or assuming a different gender later," said CJI Chandrachud.
“So marriage also in heterosexual couples ideally shouldn't have been regulated. But society felt that you can't permit people to marry at any age, many times etc," he said.
“Petitioner wants a new class to be created for a new object. That was never conceived. There is no positive obligation on state to recognise all personal relationships….State should be very slow in recognising a relationship because state is entering an arena of socio-personal relationship. It can recognise only when legitimate state interest recognises that regulation is necessary," the SG said.
“This case is much more difficult for us. These have linkages everywhere - adoption, maintenance, succession," he said.
The court also flagged adoption laws and discussed the merits of children being reared by single parents.
“Look at it from another angle. You've shown us the international scene. Unlike in other countries, there has been no prohibition for this marriage. In that sense, except 377, we didn't have any law," he said.
SC asks Centre to come back on May 3 with its response on the social benefits that same sex couples can be granted even without legal recognition of their marital status
“What you're saying is that there could be a right to cohabit and give it a name of relationship which is sanctified but that will have no obligations on state to recognise it statutorily," said Justice Kohli.
“But let's go step by step. Once you recognise that there is a right to cohabit, then it is the obligation of the state that all social impact of cohabitation has legal recognition," the CJI added.
“There's no bar in our law to having any form of ceremony. The question is about legal recognition," said CJI Chandrachud.
“Right to love or cohabit or choose a partner is there but there is no fundamental right to seek recognition of that relationship as marriage," the Solicitor General said.
“Can we tighten up your submission by saying that when you say that there is no fundamental right to seek recognition of that relationship as marriage or in any other name- can we recast it as legal recognition?" the CJI asked, prompting a clarification from the SG.
CJI Chandrachud opined that the matter was an ‘important social issue’ but not necessarily a constitutional issue that had to be adjudged by a constitution bench.
“That issue is not sui generis to same sex couples. According to you, the right to marry even for a heterosexual couple is elusory when they have to give notice. That is not connected with the issue whether same sex couples have a right to marry," he added.
Chief Justice D Y Chandrachud said that the matter was “not a five judge issue" and could be handled by any other bench. “…that matter about notice provision. That is capable of being handled by any other bench. Issue applies equally to heterosexual and same sex couples," he opined.
The hearing is paused for lunch break. It will continue after 2 PM.
The Petitioner's argument that the UK case of Ghaidan on queer rights applies in this case is “misplaced", said SG Mehta. The bench was not provided with adequate factual information by the petitioners, he added. It must be noted that the UK system of judicial review and the Indian system of judicial review are significantly distinct, SG said.
According to SG Mehta, if a mother is granted custody, it needs to be determined who is considered the mother, and this definition is consistent with both the understanding of the courts and the legislature.
The Chief Justice of India, DY Chandrachud, summarised the implications of the petitioners' arguments, as per the Centre. He stated that - if the court were to interpret the provisions of the Special Marriage Act as requested - it would result in three significant issues.
Firstly, it would require a significant rewriting of the legislation. Secondly, it would constitute interference in matters of public policy. Thirdly, it would also entail interference in the area of personal law, which the court cannot avoid, given the interplay between the Special Marriage Act and personal law.
“Who will be the wife in a gay marriage? Who will be the wife in a lesbian marriage where rights are granted to her, like maintenance? When wife can establish she has no means to maintain herself then husband has to provide maintenance pendente lite. In gay marriage who will be the wife?" asked SG.
CJI replied, “If it is read to mean to apply to same sex marriage then it would mean husband can claim maintenance. But, in heterosexual marriages, it will not apply."
According to the Chief Justice of India, if one partner of a heterosexual couple is unable to procreate, for instance, due to a childhood hysterectomy, it does not nullify the marriage. Therefore, the argument regarding procreation may not be relevant.
SGI Mehta argued, “Please visualise a situation five years down the line: I am attracted to someone in the prohibited relationship. Incest is not uncommon across the world and it is prohibited. Someone is attracted to the sister and claim autonomy and is doing something in private domain. Now, cannot this be challenged saying how can this be prohibited?"
CJI calls it “far fetched" as “sexual orientation and autonomy cannot be exercised in all aspects of marriage". “It cannot be argued that sexual orientation is so strong that incest be allowed," he added.
“What is the fundamental argument of the petitioner.., it is right to choose the sexual orientation," SGI Mehta asked. In reply, CJI Dhananjaya Y Chandrachud said, “No, they are saying sexual orientation is given to me. It is not a matter of choice but an innate characteristic."
“The petitioners want to re-write, re-structure and re-engineer the special marriage act to suit their requirements. Would an enactment be read in such a way that it applies in one way to heterosexuals and in another way to same sex. this exercise may not be an interpretative exercise," SGI Mehta said.
“Let there not be repetition so that there is no mental fatigue dealing with repetitive arguments. No one else need to argue that it is a legislative exercise. Mr Mehta and Sr Adv Rakesh Dwivedi can guide others as to how arguments are not repeated," CJI said.
Right to marry is not an absolute right, the Centre earlier told the Supreme Court.
The case hearing is expected to be a lengthy one as, in addition to SGI Tushar Mehta taking 10 hours to present his argument, many others will take hours for the same.
Statement made by the Bar Council of India (BCI) against the upcoming Supreme Court hearing on marriage equality have been criticized by more than 30 LGBTQIA+ collectives, consisting of over 600 students from law schools across India. The groups have condemned the BCI's statements as "queerphobic, regressive, and hegemonic."
There are genderless people; gender as per mood swings, cannot reconcile with statutes, Solicitor General of India Tushar Mehta told Supreme Court
A total of 36 Indian law school student groups have joined together to denounce the Bar Council of India's resolution on marriage equality, calling it "regressive, ignorant, and harmful" and expressing solidarity against it.
On April 27, the Centre will present its arguments on same-sex marriage before the Supreme Court, following the conclusion of the petitioners' arguments on Wednesday. The Centre's case was presented by Solicitor General Tushar Mehta, who urged the court to leave the matter to Parliament.
Mehta highlighted that, whenever the legislature had intervened in the matter, they made corresponding amendments to other statutes. Furthermore, he noted that none of the affected statutes had been challenged in this case, indicating that the court could not do what Parliament can.
The All District Courts Bar Associations of Delhi's coordination committee earlier joined the Bar Council of India in expressing dissatisfaction with the Constitution Bench of the Supreme Court hearing on the recognition of same-sex marriages. While the Supreme Court's role in upholding the rule of law is crucial, the bar associations stated that there were certain complex issues with significant consequences that cannot be left solely to the discretion of the courts.
The Constitution, according to Maneka Guruswamy, was given to the people by themselves, and thus it is not the responsibility of the Central government to bring the matter to Parliament.
Advocate Vrinda Grover earlier brought attention to the issue of "forced conversion therapies" that were being imposed on transgender individuals who returned to their families during the coronavirus pandemic lockdown.
The fifth day of arguments in the same-sex marriage case was heard by the Supreme Court on April 26. The petitioners sought the Union of India's "blessings", but Solicitor General Tushar Mehta, representing the Central government, stated that their prayers were "vague". He cited "societal acceptance" as a requirement for recognizing a union and stated that it had to be done through Parliament.
