On Day 3 of the marriage equality hearings before the Supreme Court, senior advocates arguing for petitioners seeking legal recognition of same-sex marriage discussed marriageable age, autonomy, and procreation.
On 18 April, the first day of the hearing, the Supreme Court bench – comprising Chief Justice DY Chandrachud and Justices SK Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli – said that it "would not touch personal laws" at this stage.
CJI Chandrachud observed that there is no data from the government that "same-sex marriage is urban or something."
As many as 20 petitions have been filed seeking marriage equality so far
At least 51 of the petitioners are queer people
Over 100 lawyers are involved in the case – with Mukul Rohatgi, Saurabh Kirpal, Menaka Guruswamy, Arundhati Katju, and Abhishek Manu Singhvi, arguing for the petitioners
The petitioners submitted that the right to marriage is not only a question of dignity but also ensures "a bouquet of rights" to queer people
'Even Heterosexual Couples Choose Not To Have Kids': CJI
Making an oral observation during senior advocate KV Vishwanathan's argument that procreation shouldn't be the basis of marriage, CJI Chandrachud said:
"Just in the case of heterosexual couples, now, with the spread of education, the pressures of the modern age, increasingly, couples are either childless or single child couples. Even popular countries like China are losing on demographic dividends. Young, highly educated don't want to have children; that's a matter of choice."
He added that people – not just the elite – are "moving away from the notion that you must have a boy."
'What If Child of Heterosexual Couple Sees Domestic Violence?'
Pointing out that the Central Adoption Regulation Authority Rules do not permit adoption by a single person unless they are married, senior advocate Ramachandran said:
"Long back, in our country, the law was – all that is required is the welfare of the child. If that is applied, it doesn't matter whether it's a heterosexual couple or a homosexual couple... Evidence shows that homosexual couples are as well suited as heterosexual couples to bring up children."
Responding to this, CJI Chandrachud remarked on the domestic violence that exists within heterosexual families and the impact it would have on a child.
"And what happens when there is a heterosexual couple and the child sees domestic violence? Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol," he said.
'Can't Look at It From Procreation Perspective'
Senior advocate KV Vishwanathan, who is appearing for petitioner Zainab Patel, asks whether procreation can be considered a "valid defence for negating the rights of recognition of [same-sex] marriage."
"Even today, people who are beyond age of reproductive capacity – women above 45 who may medically be unsafe for pregnancy – are allowed to marry. Heterosexuals who have decided to not procreate can marry," he contended.
Vishwanathan further stated that the LGBTQ community is being told that they are "almost equal, but separate."
"There are much greater things in a marriage. It helps in developing human personality. To look at it from procreation perspective is completely fallacious," he said.
'Not an Urban, Elitist Concept': Senior Advocate Ramachandran
Senior Advocate Raju Ramachandran, who represents petitioner Kaajal, a Dalit woman from Punjab, and her partner Bhavna, an OBC woman from Haryana, said they are proof that same-sex marriage is not an "urban elitist concept."
"The mere presence of these two petitioners and similar petitioners should put down the glib assumption made in the government's affidavit that they are 'urban elite'."Senior Advocate Raju Ramachandran
He termed the centre's statement "careless, unnecessary, and insensitive."
Ramachandran said that Kaajal and Bhavna had to move the Delhi High Court, seeking protection from their families.
He added: "...the institution of marriage is not just the gateway to socio-economic rights but societal protection from their own parental families. Such couples do not have enlightened parents, they do not have understanding families."
Age Under Special Marriage Act
The court discussed who of the two partners would be aged 18 years and who would be 21 years old, as per the provisions of the Special Marriage Act.
"Regarding age, whichever same sex couples is involved, that minimum age will apply. 18 and 21 ... Thereby, no stitching needed on legislative cloth. In 99 percent cases, gender can be decided on the gender professed by the trans [person]. Like if she is man but is on feminine side, then age of woman will be applied."