Same-sex marriage: Petitioners seek declaration under SMA; Centre argues limits of judicial power

The Supreme Court continued hearing a batch of pleas on legal recognition of same-sex marriage on Day 5. Petitioners sought declaration for queer and LGBTQIA persons under Special Marriage Act, while the union government argued on the limits of judicial power when dealing with social and moral issues. The hearing will continue on Thursday, April 26.

The bench comprising DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha are 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.

Beginning the argument on the fifth day, advocate Karuna Nundy wanted the court to declare that queer and non-heterosexual same-sex couples could marry under the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969. She also wanted same-sex marriages of Overseas Citizens of India (OCI) cardholders recognised under the Citizenship Act, 1955 (amended in 2019).

She highlighted that the 2011 census showed that there are at least 4.8 million transgender people in the country which was also an underestimation. She made this point while speaking about the continuity of the marriage if a person during the marriage asserts a different gender identity.

She referred to Rule 5 (Issue of certificate of identity for a transgender person under Section 6 of the Transgender Persons (Protection of Rights Act, 2019) and Form 2 (format of affidavit to be submitted by a person applying for a certificate of identity for transgender persons) of the Transgender Persons (Protection of Rights) Rules, 2020. The form uses the term ‘spouse’.

The CJI then clarified whether a person who is in a marital relationship can seek a gender re-assignment, to which Nundy replied in the positive. “So, the transgender act recognises the pre-existing marriage of a person who is a trans, since the person can be in a marital relationship when they identify themselves as a trans,” said Chandrachud.

However, Justice Bhat pointed out that perhaps there was no ground for divorce in such cases under the marriage laws. “But, here the marriage which is recognised was between individuals who were not transgenders then. If we have to go backward from this, there has to be statutory support for it, just like the Disabilities Act,” wondered Bhat.

Then the CJI clarified that Nundy was proposing, “The word third gender person be used. Male, female or third gender person, then spouse instead of husband and wife.”

Advocate Arundhati Katju, while addressing the Constitution bench on Wednesday, requested the apex court issue a declaration that marriage solemnised under SMA and parties to such marriage will be entitled to all rights, notwithstanding gender identity and sexual orientation.

She asserted that Section 21A must continue to apply to Hindu same-sex couples as far as the application of personal law was concerned. “In 50 years this section has not created any major difficulty for the LGBTQIA. This court should not presuppose the problem that may arise for LGBTQIA,” she added. Section 21(A) of SMA indicates that certain parts of marriage were governed by personal law.

“There are already LGBTQ couples who have children and by not recognising the marriage you are depriving the child of parenthood and child cannot suffer because of parents belonging to a separate class under Article 15 which is a protected one,” explained Katju.

Advocate Amritanand Chakroborty underscored that if Parliament wanted to restrict adoption to heterosexual couples under Juvenile Justice Act, 2015, they would have used the term man and wife. However, the law uses the term couples.

“In India, joint adoption is only for heterosexual couples and this is nothing but discriminatory,” added Chakraborty. He was appearing for a petitioner, who got married in Denmark, but can’t do so in India.

Centre sermonises on social impact

Solicitor General Tushar Mehta for want of any new argument from Day 1 of the hearing reiterated that the Court was dealing with a complex subject having a “profound social impact”. “All the questions in this case must be left to Parliament. In the Navtej case, the court recognised the right to a person’s sexual orientation. Here the real question is who will take a call on what constitutes marriage and between whom,” said Mehta.

He argued that as this would have unintended ramifications on several statutes and it would require debates in state legislatures, civil society groups. He went on to claim that there was no “stigma” attached to people in same-sex relationships. “Legislative policy is very clear now on Transgenders Act where it is very widely defined to include all genders as we recognise under LGBTQIA,” insisted Mehta.

Giving the example of the Hindu Marriage Act, which was debated in Parliament, Mehta underlined that even the same-sex marriage should be debated in Parliament. He claimed that the petitioners cannot seek recognition of same-sex marriage under SMA as it is only for a marriage between a conventional man and woman.

Mehta, deciding to make a mockery of gender fluidity, spoke about people who do not identify themselves with any gender. He said there were people who decide to be male or female based on their moods.

Soon, he moved on to argue that all the six major religions prevalent in the world overlap on marriage as identity. “They consider marriage as a valuable institution as it lies at the heart of the institution and one principle that is followed is that husband and wife complete each other and transforms into a new person. Children are sacred gift that is bestowed with marriage and procreation with marriage is not an archaic one,” added Mehta.

He went on to add that the intention of SMA was inter-faith and inter-caste but heterosexual unions. Then the CJI pointed out that the SMA was religion neutral so that couple could marry with coming under personal laws. Chandrachud requested Mehta to give a note on SMA antecedents.