Senior Advocate Mukul Rohatgi called for making terms in the Special Marriage Act gender-neutral so as to pave the way for recognition of same-sex marriage.
The Supreme Court, in the case of Supriyo and anr v. Union of India, responded to the argument that recognizing same-sex marriage would negatively impact children of such couples. The Court pointed out that gay and lesbian individuals already have the right to adopt children individually. The Constitution Bench, led by Chief Justice of India (CJI) DY Chandrachud and including Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli, addressed the potential effects on children whose parents share the same sexual identity.
“Incidentally, even if a couple is in a gay relationship or a lesbian relationship one of them can still adopt. So, the whole argument that this will create a sort of a psychological impact on the child is belied by the fact that even today as the law it stands, one can adopt. Once you have decriminalized homosexuality, therefore, it’s open to people to live in together and one of you can adopt. It’s just that the child loses the benefit of parenthood,” said CJI ,” the CJI said.
The Court responded directly to the Central government’s claim that same-sex relationships were limited to urban elites, stating that there was no evidence to support this notion. The Court suggested that the misconception may be due to the fact that urban areas have more people who are open about their sexual orientation.
Today marked the second day of arguments in a series of pleas seeking legal recognition of same-sex marriage.
Yesterday, the Bench proposed narrowing the focus of the petitioners’ submissions to the recognition of same-sex marriages under the Special Marriage Act, instead of delving into various personal laws.
Solicitor General Tushar Mehta submitted a fresh affidavit on behalf of the Central government, stating that inputs from states had been invited on the matter and were placed on record at the outset.
“Excellent, then States already know about it,” the CJI said.
The petitioners were represented by Senior Advocate Mukul Rohatgi, who argued that the fact that a subject is derived from the concurrent list does not necessarily require states to be heard in a constitutional challenge.
“Insolvency was challenged before this Court and that was in Concurrent List as well, but states were not joined. The letter was issued yesterday and notice was issued 5 months ago. This could have been done earlier.”
Rohatgi argued that homosexual couples should be entitled to the same benefits under the law as heterosexual couples, emphasizing the need for equal treatment in all aspects.
“Wherever husband and wife is used, make it gender-neutral by using ‘spouse’; man and woman should be made ‘person’s. Thus, a large part of this will solve our projected interpretation of the Special Marriage Act and this must also apply to the acts across the spectrum.”
Justice Kaul then said,
“Everything cannot change at once. Once its recognised, then you are married and if people then do not recognise you as married, then its a violation of our order if we agree with you.”
Rohatgi underscored that same-sex couples are compelled to seek recourse in the courts due to their lack of representation in parliament, and the stigma they face from the majority.
“Popular morality cannot defer the decisions of this Court for the legislative process. Constitutional morality will become a habit for the people when the same is upheld by this very court.”
While Senior Advocate Rohatgi was presenting his arguments, the Court examined Section 2(b) of the Special Marriage Act, which pertains to ‘degrees of prohibited relationships’ for individuals who marry under the Act.
In reference to the prohibition of certain same-sex relationships under the Act, the Chief Justice of India made a remark.
“If you see, this is a tacit implication that the Special Marriage Act did not contemplate same-sex marriage.”
Justice Kaul then stated,
“Here we see sisters-daughter as prohibited relationship, but in many communities it is allowed. So, we are a diverse country.”
Senior Advocate Abhishek Manu Singhvi, who also represented the petitioners, emphasized that the fundamental issue at hand is the right to choose.
“The heart of the matter is marital relationship. This is regardless of gender or gender identity. To manifest the idea of love into marriage regardless of the identities is the heart of the case. The obverse heart of the case is discriminatory denial to a section of the community to do it based on sex, sexual orientation, gender or gender identity.”
Singhvi stressed that the Special Marriage Act offers a secular option for marriage, which is not tied to any religious affiliation.
“So you are saying since Special Marriage Act is agnostic to faith, making it agnostic to sexual orientation is not a leap of faith. The basis of a classification cannot be conflated with a purpose,” the CJI said in summation.
The Senior Counsel argued that same-sex couples should be protected by social welfare institutions to ensure fairness under the law.
Senior Advocate Menaka Guruswamy, representing one of the petitioners, emphasized that the Court’s definition of marriage would have implications on how financial institutions treat same-sex couples.
The Bench also grappled with the question of what would be the minimum age requirement for marriage if same-sex marriage is permitted under the Special Marriage Act.
Section 4 of the Special Marriage Act outlines conditions for the solemnization of marriages. Sub-section 3 currently specifies that males must be at least 21 years old and females must be at least 18 years old.
Justice Kohli inquired how Section 4 of the Act would be interpreted if gender-neutral terms were used. When Singhvi suggested that both males and females could have a minimum age of 21 and 18 respectively, CJI Chandrachud cautioned that this approach might not be correct.
The Chief Justice of India recalled that a plea filed by BJP leader Ashwini Kumar Upadhyay, challenging the minimum age of 18 years for females to get married, had been dismissed. The Court had stated that if the provision were declared unconstitutional, there would be no minimum age for marriage, potentially allowing even a four-year-old girl to get married.
The hearing will resume tomorrow.
Source: https://www.barandbench.com/news/litigation/argument-children-same-sex-married-couple-impacted-belied-since-gay-lesbian-persons-allowed-adopt-supreme-court
