SC reserves verdict on legalisation of same sex marriage

New Delhi, May 11 : The Supreme Court’s five-judge Constitution Bench on Thursday reserved its verdict on a batch of petitions seeking a direction to the Central government to legalise same-sex marriage.

The five-judge Constitution Bench headed by the Chief Justice of India (CJI) Dr Dhananjaya Yeshwant Chandrachud, and also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, reserved the verdict.

“We are reserving the judgement,” said CJI Dr Chandrachud, after counsel from all sides concluded their arguments.

Constitution Bench has begun the hearing on the matter on April 18 and the hearing went on for nearly ten days.

Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework that allowed members of the LGBTQIA+ community to marry any person of their choice.

The court has clarfied that it will deal with the issue under the provisions of the Special Marriage Act and will not touch the personal laws on this aspect.

According to one of the petitions, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that “the exercise of which ought to be insulated from the disdain of legislative and popular majorities.

“The petitioners further asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.

Abhishek Manu Singhvi, senior advocate for one of the petitioners, said that the petitioners’ approach is consistent in principle with the two anchoring points being the underlying thrust of the SMA and the fundamental rights in the Constitution.

He further submitted that the Court may declare that provisions of the SMA with respect to solemnisation and registration of marriage are extended to non-heterosexual couples, except to the extent that provisions of the SMA or any other law in force are enacted for a “wife” against “husband” in a heterosexual marriage or for a “woman” against a “man” in a gender-specific context.

Further, on age, he submitted that in the case of same-sex couples, the provision may be read as prescribing 18 years for lesbian couples and 21 years for gay couples. In the case of transgender persons, the above ages would apply basis the gender/sex they identify by.

While concluding, he submitted that a separate regime of civil unions is not the solution to recognise their relationships of love as that would be akin to reviving from its jurisprudential grave the ‘separate-but-equal’ doctrine that is simply known as segregation.

Thereafter, Raju Ramachandran, another lawyer for one of the petitioners, submitted that lack of recognition leads to denial of equal protection of laws.

He submitted that three issues – Triple Talaq, Transgender and Data Protection, did not have a prominent problem with the majority of the legislation.

He further relied on Madhu Kishwar, Githa Hariharan and Bengal Co-Operative Society where the Court undertook the process of reading in. He requested that the Court should walk the full mile and not stop at a declaration.

Accordingly, he submitted the SMA should be interpreted in an expansive manner to include the LGBTQIA+ community but without interfering in three areas (i) provisions specifically related to the protection of wife/women, (ii) gender-specific penal laws and (iii) religious personal laws interwoven through Section 21A of the Special Marriage Act, 1954.

He pleaded that the notice provisions of the SMA are making the rights granted illusory.

KV Vishwanathan, the senior lawyer for one of the petitioners, submitted that there is a right to marry and a corresponding duty in the Union to recognise the association of non-heterosexual couples as married couples in a non-discriminatory manner.

Vishwanathan further submitted that the respondents (Union of India) argued that incestuous relations, three people coming together, which are barred in heterosexuals, would also be sought, however, that’s not the case.