PremiumSame-sex marriage hearing LIVE: The Supreme Court will hear the Centre's arguments as the case moves into Day 6 on April 27.
The legal recognition of same-sex marriage in India is currently being discussed in a batch of petitions, which will be heard by a constitution bench of the Supreme Court on April 27.
The hearing on the plea for marriage equality in India continued on the fifth day in the Supreme Court on April 26. A bunch of at least 15 petitions were being heard. The Centre urged the top court to let Parliament deal with the questions raised in the petitions that seek legal approval for same-sex marriages.
Solicitor General Tushar Mehta represented the Centre and expressed that the case was a "very complex subject" that had a "profound social impact". The five-judge constitution bench was headed by Chief Justice D Y Chandrachud.
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“Who will be the wife in a gay marriage? 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?" asked SG.
CJI replied, “If it is read to mean to apply to same sex marriage then it would mean husband can claim maintenance. But, in heterosexual marriages, it will not apply."
According to the Chief Justice of India, if one partner of a heterosexual couple is unable to procreate, for instance, due to a childhood hysterectomy, it does not nullify the marriage. Therefore, the argument regarding procreation may not be relevant.
SGI Mehta argued, “Please visualise a situation five 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 calls it “far fetched" as “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," he added.
“What is the fundamental argument of the petitioner.., it is right to choose the sexual orientation," SGI Mehta asked. In reply, CJI Dhananjaya Y Chandrachud said, “No, they are saying sexual orientation is given to me. It is not a matter of choice but an innate characteristic."
“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," SGI Mehta said.
“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," CJI said.
Right to marry is not an absolute right, the Centre earlier told the Supreme Court.
The case hearing is expected to be a lengthy one as, in addition to SGI Tushar Mehta taking 10 hours to present his argument, many others will take hours for the same.
Statement made by the Bar Council of India (BCI) against the upcoming Supreme Court hearing on marriage equality have been criticized by more than 30 LGBTQIA+ collectives, consisting of over 600 students from law schools across India. The groups have condemned the BCI's statements as "queerphobic, regressive, and hegemonic."
There are genderless people; gender as per mood swings, cannot reconcile with statutes, Solicitor General of India Tushar Mehta told Supreme Court
A total of 36 Indian law school student groups have joined together to denounce the Bar Council of India's resolution on marriage equality, calling it "regressive, ignorant, and harmful" and expressing solidarity against it.
On April 27, the Centre will present its arguments on same-sex marriage before the Supreme Court, following the conclusion of the petitioners' arguments on Wednesday. The Centre's case was presented by Solicitor General Tushar Mehta, who urged the court to leave the matter to Parliament.
Mehta highlighted that, whenever the legislature had intervened in the matter, they made corresponding amendments to other statutes. Furthermore, he noted that none of the affected statutes had been challenged in this case, indicating that the court could not do what Parliament can.
The All District Courts Bar Associations of Delhi's coordination committee earlier joined the Bar Council of India in expressing dissatisfaction with the Constitution Bench of the Supreme Court hearing on the recognition of same-sex marriages. While the Supreme Court's role in upholding the rule of law is crucial, the bar associations stated that there were certain complex issues with significant consequences that cannot be left solely to the discretion of the courts.
The Constitution, according to Maneka Guruswamy, was given to the people by themselves, and thus it is not the responsibility of the Central government to bring the matter to Parliament.
Advocate Vrinda Grover earlier brought attention to the issue of "forced conversion therapies" that were being imposed on transgender individuals who returned to their families during the coronavirus pandemic lockdown.
The fifth day of arguments in the same-sex marriage case was heard by the Supreme Court on April 26. The petitioners sought the Union of India's "blessings", but Solicitor General Tushar Mehta, representing the Central government, stated that their prayers were "vague". He cited "societal acceptance" as a requirement for recognizing a union and stated that it had to be done through Parliament.
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