Same sex marriage hearing highlights: Supreme Court to resume hearing on 9 May

We don't go by either "popular morality or segmental morality" but what the Constitution mandates, the Supreme Court observed on Wednesday when an argument was advanced before it that young same-sex couples across the country wanted to get married.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud was hearing arguments on a batch of pleas seeking legal validation for same-sex marriage.

The bench has risen for the day. The hearings will resume on Tuesday, 9th May 2023, reports Live Law

Senior lawyer Rakesh Dwivedi says with reference to the prayer to discard originalism, “We are not advancing some fundamental right here.” He says the question is statutory rights as the special marriage act as it exists, can its intention be discarded

CJI Chandrachud cites an example of a same-sex couple who marry a person from another gender. “Like 2 men in a relationship and one of them marries a woman then there will be no bigamy. This will be applicable to a trans person as well..”, Bar and Bench quoted the CJI. “So if there are two men in a relationship and one of them marries a woman, there will be no offence of bigamy”, the CJI added.

Chief justice says existence of same couple not imported from somewhere else and it is a part of the society. Advocate Dwivedi responds the same sex couples never demanded marriage. He adds marriage is not about dignity, people who are widows are not without dignity, reports Bar and Bench.

The CJI responds, “The point is not that single people have no dignity.. the question is about choice”

Chief justice DY Chandrachud asks lawyer Dwivedi how is the dignity of heterosexual marriage at stake. Justice Bhat asks the counsel he is saying using the word spouse diminishing the meaning of husband and wife, Bar and Bench reports.

“We say I take you as a husband and take you as a wife... how can we say I take you as my spouse”, Dwivedi responds, to which CJI says this is not his strongest case.

Senior advocate Dwivedi argues in court, "Now question is there a fundamental right to marriage.. fundamental right to recognition of marriage and is there a fundamental right to equality in the marriage of heterosexuals.. can this be made permissible by the variety of amendments".

Hearing resume. Senior lawyer Rakesh Dwivedi argues there is an omnibus demand as same sex, intersex and transgenders want an equation with heterosexual marriage, reports Live Law

AG: No vaccum can be attributed to the SMA. Absence of reference to all possible unions of persons as marriage cannot be construed as a legal and a constitutional omission.

A hidden provision cannot be retrieved if it was never present there and similarly there is no question of same sex relation under special marriage act, says Attorney General R Venkatramani. 

SMA was supposed to be special law for heterosexual form of relationships and that same sex law was never intended to be a part of this and that this will lead to a host of legislative changes.

For something as simple as pension, provident fund, gratuity, benefits - that accrues only in a marriage. It doesn't accrue to a caregiver, says Menaka Guruswamy

CJI DY Chandrachud: From the drift of the submissions made by SG last time, it appears that the SG also accepts that people do have a right to cohabit and that right is an accepted social reality.

Govt positive about suggestion for exploring administrative steps to address concerns of same-sex couples

Petitioners can give suggestions on issue of exploring administrative steps: Solicitor General tells SC hearing same-sex marriage matter

Centre agrees to set up panel headed by Cabinet Secretary to explore administrative steps for addressing concerns of same-sex couples

Supreme Court Constitution Bench begins hearing on a petition related to same-sex marriage. Solicitor General Tushar Mehta apprises SC that a committee headed by the cabinet secretary will be constituted to look at the issues faced by the same-sex couple.

SG Mehta says petitioners can submit suggestions so that the committee can apply their minds to it.

Earlier on 27 April, SC had 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.

On Monday, Vishwa Hindu Parishad (VHP) held a protest in Tripura's Agartala and said the outfit will orgainse similar protests nationwide against a plea in the Supreme Court on the issue. "Nationwide protests will be held against the plea in the Supreme Court. This plea is against the ethics of Sanatani beliefs," VHP Tripura chief Mahendrapal Singh said. Opposing the plea, Singh said that the Hindu Marriage Act 1954 is sacred and should not be changed.

"Hindu Marriage Act 1954 is very sacred and based on the 'sanatani' belief and it should remain unchanged and unchallenged," Singh said. "All the saints and educated fraternities have strongly objected to this unexpected anticipation," he added.

Day 1: Notions of man, woman, genitals do not define gender in absolute sense: Supreme Court
Day 2: Argument that children of same-sex married couple will be impacted incorrect; gay, lesbian persons can already adopt individually: Supreme Court
Day 3: Supreme Court flags trolling based on oral observations, questions raised during hearings

Day 4: Recognition of same-sex marriage would require re-enactment of other laws; is this our job? Supreme Court asks

Day 5: United States Supreme Court decision in Dobbs vs. Jackson is incorrect; we have gone far ahead: Supreme Court of India/ There are genderless people, gender as per mood swings; cannot reconcile with statutes: SG Tushar Mehta
Day 6: Supreme Court says recognising same-sex marriage up to legislature; but asks Centre to devise means to confer rights without marriage label

Supreme Court of India to resume hearing a batch of 20 petitions seeking to legalise same sex marriage. 5-judge Constitution bench to begin hearing today post 11 am

Today will be the 7th day of the crucial hearing where millions of people in the country are seeking legal validation for same-sex marriages.

Here are highlights of what the Supreme Court's 5-judge bench said so far:

• Notions of man, woman, and genitals do not define gender in an absolute sense
• It is incorrect to say that children of same-sex married couples will be impacted; gay, and lesbian persons can already adopt kids individually, the court said
• Supreme Court flags trolling based on oral observations
• US court decision in Dobbs vs. Jackson is incorrect; we have gone far ahead: Supreme Court of India
• The apex court says that recognising same-sex marriage is up to the legislature; but asks Centre to devise means to confer rights without a marriage label

Supreme Court of India to resume hearing a batch of 20 petitions seeking to legalise same sex marriage on Wednesday (3 May).

A 5-judge Constitution bench will begin hearing today post 11 am.

Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. The Centre has opposed the petitions. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQ community to marry any person of their choice.

In an affidavit filed before the apex court, the government submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country. The petitioners have cited that right to marry cannot be withheld from a section of people based solely on their sexual orientation. The batch of petitions challenge the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages.

The 5 bench judges are hearing the petitions - Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha

Lending support to same-sex marriage, actor Kangana Ranaut has said people's preferences do not matter when their "hearts are one". The National Award winner further described marriage as "a bond of love".

"Marriage is a bond of love. When people's hearts are one... what their preference is, what can we say about that?" Ranaut told reporters in Haridwar on Sunday. Apurva Asrani, co-writer of her 2017 film "Simran", thanked the actor for backing "marriage equality" at a time when most stars are shy of speaking up.

Same-sex marriage is a "blot on humankind" and there is no need to accept a Supreme Court judgment that legalises it, the Shankaracharya of the Puri Peeth had said. Swami Nischalananda Saraswati of the Govardhan Math said if such a judgment comes, nature will punish the judges. The matter comes within the purview of religious leaders and not a subject to be decided by the court, he added.

"Same-sex marriage is a blot on humankind and there is no need to accept a decision if it is legalised by the Supreme Court," the Shankaracharya said

More than 120 eminent citizens, including retired high court judges and former bureaucrats, have written to President Droupadi Murmu opposing what they called "highly objectionable attempts" to legalise same-sex marriages.

They said the Indian society and culture do not accept same-sex behavioural institution as it is irrational and unnatural.

The signatories said they were "shocked" over the "continuous onslaught" against the country's basic cultural traditions and religious tenets, in particular, the "highly objectionable attempts" towards legalisation of same-sex union.

The deliberation regarding human institutional relations like that of a marriage is "essentially a legislative function", they said, claiming that the courts should "refrain" from creating or recognising or demolishing the institution of marriage either by way of ajudicial interpretation or striking down or reading down the existing legislative framework for marriages.

The Supreme Court Bar Association (SCBA) had condemned the statement issued by the Bar Council of India (BCI) against the marriage equality hearing in the Supreme Court.

According to a statement, the SCBA Executive Committee said it feels highly inappropriate for the BCI to issue a Press Statement dated April 23, 2023, opposing a hearing of the matter before the Supreme Court.

"It is the duty of the Court to hear the petition and decide whether the matter should be adjudicated by the Court or left to the wisdom of Parliament. This resolution should not be construed in any manner that we are supporting or opposing the petitioner in the matter pending before the Supreme Court," SCBA said.

On April 27, The Supreme Court indicated it might refer for adjudication by a two-judge bench the challenge to the 30-day prior notice provision in the Special Marriage Act, 1954.

The Special Marriage Act, 1954 provides a legal framework for the marriage of people belonging to different religions or castes. It governs a civil marriage where the state sanctions the marriage rather than the religion.

According to the Article 21 of the Constitution of India, Marriage is an element of the right to life. Article 21 of the Constitution guarantees the right to marry the person of one's choice. "The role of society in deciding our choice of spouses is non-existent. "Article 21, which deals with the right to life and personal liberty, boasts a rather holistic provision that encompasses the inalienable right to marry the person of one's choice.

The Supreme Court of India has been hearing arguments in context with granting legal sanction to same-sex marriage. During the hearing, Solicitor General representing the Central Government stated that there is ‘ no fundamental right in seeking recognition of a relationship as a marriage. “Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name", Tushar Mehta was heard saying during the sixth day of the hearing.

Earlier on 27 April, SC had 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.