Insurance, Pension, Adoption: Lawyers Tell SC Why Same-Sex Marriages Are Crucial

What have petitioners' lawyers argued in the Supreme Court so far? And how has the top court taken their arguments?

Image: Vibhushita SIngh/The Quint 

“The heart of the case is right to choose.. and the heart of the matter is marital relationship.. this is regardless of gender or gender identity... and to manifest the idea of love into marriage regardless of the identities is the heart of the case.”

These were the words of Senior Advocate Abhishek Manu Singhvi on Day 2 of the Supreme Court hearing on petitions seeking recognition of same-sex marriages.

For the uninitiated, the apex is currently hearing 20 petitions which have argued that India’s marriage laws discriminate against same-sex couples.

In a nutshell: These petitions, filed by same-sex couples, trans-couples and activists from across the country, have said that while the Supreme Court decriminalised homosexuality and recognised an LGBTQIA+ person’s ‘right to love’, it did not recognise their ‘right to marry’.

Over the course of the hearings so far, the petitioners’ lawyers, among other things, have argued that without the right to marry, same-sex couples can't avail legal benefits, which are easily available to heterosexual folks.

Here are the crux of arguments made by them over two days:

Bank Accounts, Life Insurance: Everything Becomes a Problem

The lawyers representing the petitioners have argued that without legally recognised marriages, everyday rights, essential to the ‘business of life’ becomes unavailable to them:

• Can’t nominate partners for life insurance schemes or bank accounts

• Pension can’t be disbursed without marriage

I cannot nominate my life partner for life insurance.. and people like Mr Kirpal or me will keep coming to this court to redress individual grievances," Guruswamy added.

Can’t Adopt Without Getting Married

The lawyers have also argued that same-sex marriages not being legally recognised becomes an impediment in the adoption process too.

Although the law doesn't bar an LGBTQIA+ person from adopting a child in an individual capacity, the law says that a couple can adopt a child only if they have been married for a period of over two years.

Meanwhile, the National Commission for Protection of Child Rights (NCPCR) has opposed granting of adoption rights to same-sex couples. They have relied on a study which shows that such a child gets affected both socially and psychologically.

However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners, and said adoption and succession rights must be conferred on same-sex couples.

‘Criminality Is Now Gone But..’

Why else is this necessary? The petitioners’ lawyers answer:

'Urban Elitist Views': What The Govt Has Said

The Union government opposed the petitions in an application to the Supreme Court on Sunday, 16 April, which termed them "mere urban elitist views for the purpose of social acceptance."

The Centre argued that creating or recognising a new social institution like same-sex marriage should be a matter of legislative policy and determined by the appropriate legislature.

Meanwhile, Solicitor General Tushar Mehta, has said that 

the case should not be argued in the court at all as "there are certain issues that are better left to the discretion of the Parliament."

He added that even in the Special Marriage Act, "the legislative intent throughout has been relationship between a biological male and a biological female."

Previously, in an affidavit filed in the Supreme Court in March the Central Government opposed pleas for recognition of same-sex marriage, claiming that heterosexual relationships are the 'norm.'

And The Supreme Court…

1) Responding to the government’s apprehensions, CJI DY Chandrachud said that the government “does not have any data also to show that same sex marriage is an urban elitist concept.”

2) Interjecting on SG Mehta’s argument about the technicalities of the Special Marriage Act, CJI Chandrachud said: