Same-sex marriage: LIVE UPDATES from Supreme Court [Day 6]

A Constitution Bench of the Supreme Court is hearing a batch of pleas seeking legal recognition of same-sex marriages in India.

The bench is led by Chief Justice of India DY Chandrachud and also comprises Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli.

Yesterday, Solicitor General of India Tushar Mehta told the Supreme Court how gender was fluid and took several forms, an aspect that would prove to be impossible to accommodate in statutes.

The batch of petitions have sought the recognition of same-sex marriages under law, arguing that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.

The Central government has opposed the petitions filed before the Supreme Court by gay couples.

In an affidavit filed before the top court, the Central government said that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.

The Centre has also filed an application asking the Court to first decide on the maintainability of the petitions.

Similar views have been expressed by Islamic religious body Jamiat-Ulama-I-Hind, which has said that notions like same sex marriage originate from western culture that have radical atheistic worldviews and the same should not be imposed on India.

The National Commission for Protection of Child Rights (NCPCR) has opposed conferral of adoption rights on same-sex couples, relying on a study which shows that such a child gets affected both socially and psychologically.

However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners, and said adoption and succession rights must be conferred on same-sex couples.

The Bar Council of India (BCI) recently held a joint meeting with all the State Bar Councils in the country and passed a resolution requesting the Court to leave the same-sex marriage issue for legislative consideration.

Read more about Day 1 hearing here and here.

Read more about Day 2 hearing here and here.

Read more about Day 3 hearing here.

Read more about Day 4 hearing here.

Read more about Day 5 hearing here.

Live updates from the hearing today below.

CJI DY Chandrachud: 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.

Justice Kaul: we saw some of them who will argue.. but we made it clear we will not touch religious or adoption issues.. so I do not know if they will have anything to argue.

CJI: Challenge to notice provisions in SMA can be assigned to a two judge bench if its a standalone prayer.

SG: Yes it is standalone.

CJI: It applies to both heterosexual and others.

SG Mehta: It will perhaps not be in the remit of the court to not go into personal law issues.

CJI: That you can very well argue...

SG: Yes milord.

SG: 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..

Justice Bhat: This is what I meant.. is this two way or three way switch possible in interpretation?

CJI: These degrees of prohibited relationship are lifted from Hindu codified law?

SG: Sagotra and Sapinda ..

Justice Bhat having recovered from COVID-19 is physically present in Supreme Court today.

SG: What is the fundamental argument of the petitioner.. it is right to choose the sexual orientation.

CJI: No they are saying sexual orientation is given to me.. it is not a matter of choice but an innate characteristic.

SG: There are 2 schools of thought.. one says it can be acquired also and one says it is an innate character..

SG: Please visualise a situation 5 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: But this is far fetched.. 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..

SG: Then one will claim right to polygamy...

Justice Bhat: If you are building up and saying there is state interest in this relationship... then that is different.. so there is no field completely autonomous in that sense.. there are certain state interests which are legitimate..

SG: State has no business to regulate social personal relationships...but state can regulate certain relationships if it was in legitimate state interest..

SG: Now please see definition of full blood and half blood.. petitioners do not represent everyone in this class.. two persons are related by full blood when they are descendants from a common ancestor by the same wife and half blood when common ancestor but different wives.. this provision can never be reconciled with same sex marriage.. marriage with lesbians.. this section will redundant since this will not apply.. merely making man and woman as persons will completely make this provision redundant.

CJI: Please see Section 3g of the Hindu Marriage Act.

SG READS: 3(g) “degrees of prohibited relationship”—

two persons are said to be within the “degrees of prohibited relationship”—

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Justice Bhat: Special marriage act was a template for which this was built..

SG: SECTION 4 - CONDITIONS RELATING TO SOLEMNIZATION OF SPECIAL MARRIAGES.―

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(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

This shows the act contemplates a relation between a biological man and a biological woman.

CJI: In case of heterosexual couple a fact that one one of them cannot procreate does not invalidate the marriage like if the girl has a hysterectomy during childhood... so the procreation point may not be applicable.

SG: Section 21 of the Special Marriage Act: Succession to property of parties married under Act.. Muslims are governed by personal laws except for succession..

CJI: So 21A lifts the prohibition of the disability created by section 19... so when you marry a non hindu..

SG: Then section 19 applies.. say I marry a Muslim.. only for the sake of example.. section 19 will apply.. that is why I say that personal law is interwoven even with special marriage act.. it may not be to say that personal law will not apply.

Justice Bhat: There is some kind of cognateness in these legislations SG: Yes milord.

SG: Please see the 59th report of the law commission of India on section 21A.. It says both Hindu parties should be excluded where the succession law of hindu law can continue to apply..

Justice Bhat: Yes, the report is important.

Justice Bhat: How many marriages are registered in this court room?

SG: My senior's marriage is not registered (Sr Adv Rakesh Dwivedi).

CJI: Where is the proof Mr Dwivedi.. where is the proof (laughs).

Sr Adv Dwivedi: Will enable remarriage (laughs).

CJI: The fact remains that non-registration of marriage does not render the marriage void.. only when you try for visas etc.

CJI: You basically say that reading man and wife as spouse or persons will not help..

SG: Now please come to the section concerning divorce.. see section 13.

SG: We cannot just say decide the issue and leave individual cases for future adjudication.. issues will arise all across the country.. who will be the wife in a gay marriage.. and 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..

CJI: If it is read to mean to apply to same sex marriage then it would mean husband can claim maintenance... but in heterosexual it will not apply..

Justice Bhat: Because yes they argued that one identifies to a particular role.

SG: Yes how will the court determine who is the husband or wife?

Justice Narasimha whispers before muting the mic: that will be an impossible thing to do......

CJI: For section 125 CPC also it refers to "his wife", "his mother father" so that is more.... it directly refers...

CJI DY Chandrachud: Referring to your arguments, it means that if we were to read provisions of the special marriage act as petitioners want us to and if court reinterprets the provisions there will be three major problems..

1. It will involve substantial re writing of legislation

2. it would amount to interference in matters of public policy

3. it would also interfere in the realm of personal law and court cannot avoid the interplay between SMA and personal law.

SG: Now come to the domicile issue.. there is wife's domicile during her marriage.. and it has to be decided who is the wife. Succession act provides father, mother, brother, widow, widower... if in this relation one partner dies then who is left behind... widow or a widower?

SG Mehta now refers to sections where "bride" and "bridegroom" has been mentioned.

Justice Kaul: To test it as a devils advocate can it be said that in all these provisions that biological sex of the person is taken into account for all these legislations for the purpose to facilitate same sex marriage?

SG: It will not be workable because suppose in a same sex couple it is said a widow will inherit.. who will be the widow.. it cannot be on case to case basis'.

Justice Bhat: One is dependant on the other.

SG: If the custody goes to a mother.. then it has to be seen who is the mother.. the mother will be who we understand and the legislature has understood the same.

Justice Bhat: Section 376 IPC will not be applicable to same sex couples if you see.

SG: See section 375.. here also a man can only commit rape..

Justice Bhat: But if gay man rapes another man.. then not 375.. then section 377 comes...

SG: Yes section 377 decriminalized only for consenting same sex couples.

SG Mehta reads: Indian Divorce Act, 1869.

Section25. Separated wife deemed spinster for purposes of contract and suing.

CJI : It is time you change this...

Justice Kohli: Time you update the laws now..

CJI to his colleague judges.. deemed spinster.. imagine.

SG: Yes my lord.

SG: Petitioner's reliance on Ghaidan (UK judgment on queer rights) is misplaced. The bench was not provided with the factual background by the petitioners.... The system of judicial review in UK and the system of judicial review in India, are starkly different... In Ghaidan, the Court was dealing with an entirely different subject matter of an enactment dealing with rent and not of creating a social institution in the nature of marriage. It was a question of a singular provision to be read in consonance with the treaty obligation and not the case wherein an entire architecture of multiple statues, built around the heterogenous institution of marriage, is sought to be redrafted by the Petitioners, in the name of judicial review.

Justice Bhat: There are stronger words used.. like judicial vandalism.

SG: Yes the words in US court judgments are harsher.

CJI: Yes they are not career judges.. they come from policy domain etc also..

SG: Discussion of the boundary between legislation and interpretation has tended to focus on two factors. First, it will not be 'possible' to construe legislation in a Convention-compliant way if to do so would be inconsistent with some important feature of the legislation.

Secondly, the courts even in UK have shown reluctance to place creative reliance on section 3, in cases involving complex questions of social policy which the courts are ill-equipped to decide and which are therefore best left to Parliament.

SG: The earlier authorities, prior to Ghaidan supra and after HRA, 1998, which were summarised by Lord Bingham in Sheldrake v DPP;...it was held that a Convention-compliant interpretation may not be 'possible' where it:

" . . would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation . . .”

Justice Bhat: There was a civil partnership act also.

SG: Where there was debate and discussion by the legislature also.. then comes Wilkinson judgment.

Justice Bhat: Yes very interesting one.

CJI: We will continue after 2 pm.

Senior Advocate Raju Ramachandran: Right to marry will be illusory if the notice provision under SMA continues.

CJI: But this has no connect with the subject that same sex couples have a right to marry. This is an important social issue but not a constitutional issue.

Justice Bhat: Shreya Singhal was also not dealt by 5 judges bench.

Sr Adv Anand Grover: Let the hearing be complete and the bench may then decide.

CJI: Let the Solicitor continue.

CJI: If you can wrap up by 3:30, the judges can go back and get back to tomorrows files. I will be here till night..

SG: I will milords

CJI: Since we have wider judicial review powers our interpretative approach is narrower, this is because we can strike down a law. But in UK their approach is wider since they cannot do so.. and only leave it to the parliament to remedy it.

SG: 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.

CJI: We will make it right to project a sexual orientation.

CJI: Suppose a same sex couples bring 25 people and have a marriage ceremony. so you accepted that there is no bar in law to have a ceremony but the question is about legal recognition.

SG: Yes ! in Gujarat a woman married herself.. I do not know how.

Justice Narasimha: Yes it is profound.. very profound (smiles).

CJI: Once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationship.. and once you say that right to cohabit a fundamental right// then it is the obligation of the state that all social impact of the cohabitation has a legal recognition.. we are not going into marriage at all.

Justice Bhat: These are aspirations of a welfare society that there is a recognition of some sort.. so what can the state do.. apart from what you argue that.

CJI: Can the people who cohabit cannot open a joint bank account..

SG: We can find a solution to that problem.

CJI: We would want the government to make a statement before us. All of these ministries are before us...

Justice Bhat: Not marriage but some label is needed.

SG: Loud thinking.. except from a cohabitation like marriage.. if there are other issues etc... that can be addressed.

Justice Bhat: You are saying they have right to associate themselves..

CJI: I do not think this will be an issue.. ultimately we want a broad sense of coalition... we are conscious what representative democracy can achieve at the moment.. see one of the couples in same sex relation can adopt... there is no bar.. child goes to school.. now does the govt want a situation where the child is considered a single parent child? we need not go till marriage... cannot the child have benefit of the cohabitation which is there at home.

SG: I share your concern.

Justice Bhat: If both are there then both the participant has to be recognised..

SG: This is more of a sociological problem...

CJI: These are real life situations.

SG: There are studies which shows that single parent child growth is better than the ones who see both men and both women raising them.

SG: This movement started in 2002..

CJI: No SG.. This started much before and it had to be given up to make way for the Victorian philosophy... go to any temple and see the murals.. see 1857 and thereafter.. we imposed it as a code of british victorian morality on us where the culture of us was so different and broad and also a reason why our religion survived... we understand our limitations as the court. There are so many issues where the govt on administrative side can bring out so many changes.. and relationship of court with govt cannot be adversarial.

SG: We will speak at appropriate level and get back.

CJI: Despite the govt stated position before us... we have transgender act before us and look at the vision of the legislation.

Justice Bhat: We had Vishakha and compared to earlier law.. now it applies to all establishments... then came the transgender act and this constant collaboration which has happened.

CJI: Vishakha deals with a social issue which does not have interlinkages... what we did was we internalised the system and gender sensitisation committee was made..

SG: Yes it was as an identifiable class and an identifiable law.

CJI: This case is much more difficult for us to do.. these are not just silos.. these have adoption, maintenance etc.

Justice Narasimha: When we say recognition it need not be recognition as marriage. it may mean recognition which entitles them to certain benefits... the association of two people need not be equated to marriage.

CJI: In privy council era... long cohabitation equated to marriage.. there were no certificates.. and thus presumption of marriage due to long cohabitation... we are not in marriage at all. but therefore why we are pushing the govt to this because we take your point that if we enter this arena this will be an arena of legislature.. so now what? what does the govt want to do with the cohabitory relations... and how a sense of security and social welfare is made... and to ensure that such relations are not ostracised.

Justice SK Kaul: Has any thought process been worked out in any concerned ministry or has such a thought process been worked out in the last 5 years.

CJI: We request you to assist us in a non adversarial manner.

SG: The decriminalisation of the act did not give any status to the relation.

Justice Kaul: Yes that was a recognition of the present scenario... live in relation also falls in that category.

SG: We can assist in the removal of these problems or difficulties but not granting any legal recognition or status.

Justice Bhat: But the modality adopted is important since the term used can also be partner.. if not that then it may be counter productive.

Justice Narasimha: Since you said this is in executive domain...we are putting this to you only.

CJI: Our next hearing will be on May 3, so you can discuss with appropriate authority and get back till then.

SG: Special marriage act is only for the heterosexuals. The object is inter-faith... there is no obligation on state to recognise each and every relationship..

SG: Transgender the way we understand in common parlance or in colloquial sense.. like eunuchs.. is not the one that is intended.. it covers all spectrum and shades.

CJI: The gay, lesbian community is not in transgenders...

Sr Adv Saurabh Kirpal: This is wrong ! A cis gendered person cannot be transgender person.. it is not at all so...

CJI: Lesbians can be cis gendered... because they have not undergone sex reassignment surgery etc.. so no trans..

SG: Yes like a man trapped in woman's body, I read somewhere. I may be wrong

Justice Kaul: If the concerns of gay and lesbian community has to be addressed.. a legislation may be needed like the transgender act.. but the answer will not be in transgender act.

SG: But the stigma is about transgenders.. others do not have stigma.

CJI: A lot of stigma indeed...No no if you see 1950 debates on SMA you will see there was social stigma.

SG: Not as much as transgenders.

SG Mehta reads the special courts bill judgment by a seven judge bench.

Then the point of under inclusion in Kedarnath Bajoria judgment: Where it was said equal protection of laws does not mean all laws should be general in nature and that state cannot classify for the purpose of legislations.

SG: The validity of the special marriage act is being considered here.. so even if the act is held is unconstitutional the petitioners will not get any relief..

Justice Bhat: Then you go only by the classification theory.

SG: For personal liberty marriage is not a sine qua non... for enjoyment of right to cohabit you do not need a recognised institution of marriage.. since this movement started 20 -30 years ago.. there is no concrete data on adoption etc and to make decision based on this now will be hazardous and guess work.

CJI: Mr Dwivedi please give us a page... on what will you argue..

AG: I have a personal difficulty.. I wont be able to appear on Wednesday

Dwivedi: I will be on separation of powers.. on statutes like the special marriage act..