Same-sex marriage: Centre claims people will use legal recognition to defend incest

While continuing to hear a batch of pleas on legal recognition of same-sex marriage on Day 6, the Supreme Court queried whether social welfare benefits could be given to same-sex couples without legal recognition of such marriages. The union government, however, claimed that people would use the legal recognition given to non-heterosexual marriages to defend incestuous relationships. The case will be heard on May 3.

"[Say] I am attracted to someone in the prohibited relationship," said Solicitor General Tushar Mehta. "Incest is not uncommon across the world and it is prohibited. If I am attracted to my sister and claim autonomy as [any sexual act] is being done in privacy, [a] person can question how this could be prohibited."

Countering this, Chief Justice of India (CJI) D.Y. Chandrachud underscored that it was a far-fetched idea incest as a sexual orientation would be allowed. Mehta responded that even the idea of same-sex relationships was far-fetched.

The bench—comprising D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha—is hearing a clutch of petitions arguing for Constitutional recognition of same-sex marriage. The Centre has opposed it on the grounds that it is an urban elitist concept and only Parliament should make laws.

Petitioners have challenged these provisions as violative of fundamental rights to privacy and argued that the notice exposed couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.

Mehta argued that people could use all sorts of arguments to justify both incestuous relationships and polygamy. Here Justice Bhat intervened to ask where Mehta was headed with his arguments and whether he was leading up to saying that the state has an interest in this relationship.

Moving on to divorce, Mehta suggested issues would arise all across the country as to who would be the 'wife' in a gay marriage: "Who will be the wife in a lesbian marriage where rights are granted to her such as maintenance? When the wife can establish she has no means to maintain herself, then [the] husband has to provide maintenance. In [a] gay marriage, who will be the wife?"

The CJI pointed out that if the rules were read to apply to same-sex marriages, then it would mean that a husband could claim maintenance, but it would not apply in heterosexual marriages. Chandrachud clarified that if the court were to go by Mehta’s arguments, then it would mean that giving legal recognition to same-sex marriages would require substantial rewriting of legislation, amounting to interference in matters of public policy and interfering with personal laws.

Arguing on matters of semantics, Mehta then questioned what would be considered the domicile of a 'wife'. He went on: "The Succession Act provides father, mother, brother, widow, widower. In this relation, if one partner dies, then who is left behind: [a] widow or a widower?"

Intervening again, Justice Kaul suggested that if one had to play devil's advocate, it could be said that in all these provisions, the biological sex of the person could be taken into account in legislation for the purpose of facilitating same-sex marriages. Mehta insisted that would not be workable.

"[The] 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," claimed Mehta.

CJI Chandrachud highlighted that though the government has stated its position before the court, it was important to read the Transgender Act in adopting a vision for the legislation.

Justice S.K. Kaul asked Mehta if the government had worked out any procedure in the last five years to address these issues. "We can assist in the removal of these problems or difficulties, but not granting any legal recognition or status," replied Mehta.

"But the modality adopted is important since the term used can also be 'partner'. If that is not done, then it may be counterproductive," explained Bhat.

Mehta claimed that the state had no obligation to recognise all kinds of relationships as it was not a 'fundamental right'.

"Once you recognise there is a right to cohabit, and it may be symptomatic of a sustained relationship, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition,” added CJI Chandrachud.

Bhat added that it had to be recognition which gave them benefits. "What does the government want to do to ensure that such cohabiting couples are recognised, to ensure [their] security and social welfare? By doing that, we can ensure in future that these relationships will cease to be ostracised in society," he said.

Justice Narasimha asserted that when the court says 'recognition', it may not always be recognition as marriage. "Recognition can mean [as an] association which should entitle them to certain benefits," he added.

The bench said there should be recognition for those in cohabiting relationships in terms of security and social welfare. They added that there was no bar to one of the partners in the same-sex relationship adopting a child and asked whether the child should not get all the benefits possible from the two people with whom the child resides.

Mehta claimed then these were just hypothetical situations and more of a sociological problem. The bench then countered it saying that these were real-life problems.