Same sex marriage: SC asks about the extent to which courts could go as Parliament could legislate on marriage

The Supreme Court on Day 4 of hearing a batch of pleas on legal recognition of same-sex marriage highlighted that Parliament can legislate on marriage and divorce while pondering about the extent to which the apex court could interfere. The hearing will continue on Wednesday, April 25.

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.

The CJI made this observation when senior advocate Maneka Guruswamy argued that government’s statement could not be that this is a matter for Parliament when the fundamental rights of a certain community were being violated. They had a right to approach the court under Article 32.

“When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?” asked Justice Bhat.

Guruswamy reiterated that the basic structure belonged to them too as they were also part of its soul. “Parliament cannot be the reason to exclude us from this guarantee under the constitution.” She wanted a workable interpretation of the Special Marriage Act to recognise their relationships.

“We the people gave ourselves the constitution... Centre cannot come here and say that this is a matter of parliament since our fundamental rights is part of the basic structure and this is what the 50 years of Keshavananda Bharathi case was all about and these 50 years was of LGBTQIA as well,” asserted Guruswamy.

However, Bhat pointed out that even changing the SMA would have an impact on the personal laws. Chandrachud then observed that Section 21(A) of SMA indicated that all other parts of marriage were governed by personal law.

“Just because we do not get into personal law issues since it is a thorny one, but how many follow ups will we play. The major task of re-enacting other laws, who will do it? Is this our job? That is the final question,” queried Bhat.

Senior advocate Sayrabh Kirpal underlined that if this had been the case with heterosexual couples, then the act would have been struck down. “When there is an infraction of fundamental rights, the court has to step in... court has to hold that we have a right to marry,” added Kirpal.

“The SMA carved out an exception, by being neutral to religion. But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law. There is no denying the link between SMA and personal law,” said the CJI.

Chandrachud wondered whether the court could say that the intent of Section 4 of the SMA was to recognise same sex marriages. Kirpal said the court could not do that as the law came into force in 1954.

Senior Advocate Jayna Kothari appearing for one of the petitioners, a transgender person seeking marriage equality for all and not just same sex couples, urged that every individual has a fundamental right to family and that recognition of such family should fall under Article 21 of the Constitution, irrespective of their gender identity or sexual orientation. She submitted that family goes to the core of one's being.

She added that the Special Marriage Act presently, by focusing only on men and women, denies transgender persons the right to marry and have a family solely on basis of their gender identity. That amounts to Article 15(1) discrimination on basis of sex, she argued.

Advocate Vrinda Grover prayed for declaratory relief in order to showcase the the level of familial violence suffered by transgenders. “There is also an assumption that families would necessarily be supportive but the source of violence is the natal family and I will show such cases where 31 persons had testified such people coming from rural areas on violence suffered at the hands of natal families,” she pointed out. She added that this is why it was important to identify and legitimise the chosen family of people.

Senior Advocate Anand Grover who appeared for two couples, seeking recognition of their marriage under Special Marriage Act and Foreign Marriage Act respectively, submitted "intimate associations" of queer couples are encapsulated under Article 19(1)(c) [to form associations or unions], subject to reasonable .

On Day 3, the apex court discussed various sections of the Special Marriage Act 1954, which require parties to give advance notice of 30 days at the Registrar's office inviting public objections. Senior Advocate Dr Abhishek Manu Singhvi, underscored that couples opting to get married under the Hindu Marriage Act or personal laws are not mandated to give advance notice to the public.

During the hearing, Singhvi pointed out that an issue would rise if the words ‘male’ and ‘female’ were to be replaced by the term ‘person’ in the Special Marriage Act, because the Act states that the minimum age of marriage as 18 for women and 21 for men. However, he suggested that they could apply the law based on the gender the person professes.

On Day 2 of the hearing, senior advocate Mukul Rohatgi submitted that the words ‘husband’ or ‘wife’ must be changed to ‘spouse’, and the words ‘man’ and ‘woman’ must be changed to ‘person’ in the Special Marriages Act to make the law gender-neutral.

On Day 1 of the hearing, the Court decided to limit the scope of the case to develop the notion of a civil union which finds recognition within the Special Marriage Act. While hearing the petitioners, the bench decided that it would not touch the Hindu Marriage Act or any personal laws and instead focus on the maintainability of including same-sex unions under the Special Marriage Act.

Arguing for the petitioners, senior advocate Mukul Rohatgi said that people are in same-sex relations have the same rights under the Constitution as the heterosexual group of people. The court had removed the Section 377, which was a stumbling block on our equal rights.