The five-judge Supreme Court bench continued hearing the marriage equality petitions on Thursday, 27 April, during which Chief Justice of India DY Chandrachud said that "if the state recognises the 'right to cohabit' as a fundamental right, it also has an obligation to legally recognise the social impact of cohabitation of a same-sex couple."
The CJI was responding to Solicitor General Tushar Mehta, who argued that:
"The right to love, to cohabit, to project one's sexual orientation, and to choose one's partner is a fundamental right, but it is not a fundamental right to seek legal recognition of that relationship as a marriage or in any other name."
In other words, SG Mehta contended that while same-sex couples could have the right to cohabit and sanctify their relationship, the state has no obligation to recognise it statutorily.
What Did the CJI Say?
The CJI, however, pointed out: "It is the obligation of the state that all social impacts of cohabitation have a legal recognition. The people who cohabit cannot even open a joint bank account…"
"Say one of the couples in a same-sex relationship can adopt... Now does the government want a situation where the child is considered a single parent child? We need not go till marriage... Can the child not have the benefit of cohabitation?"CJI DY Chandrachud
Justice PS Narasimha, who is part of the bench, added that "when we say recognition, it need not be recognition as marriage. It may mean recognition which entitles them to certain benefits... the association of two people need not be equated to marriage."
The CJI suggested that the government make a statement before the judiciary regarding the same on Wednesday, 3 May.
'Gay People Are Also Stigmatised': CJI
When SG Mehta argued that the LGBTQIA+ movement began in 2002 and is only a few decades old, the CJI pointed out that it "started much before and it had to be given up to make way for Victorian philosophy."
"Go to any temple and see the murals…see 1857 and thereafter, we imposed it as a code of British Victorian morality – but our culture was so different and broad…" the CJI said.
Referring to the Transgender Persons (Protection of Rights) Act, the Solicitor General claimed that the word 'transgender' encompasses lesbians and gay people as they are 'gender queer'.
"If I show your lordships broadly the scheme of this Act: first, transgender (persons) the way in which we understand in colloquial parlance, which is equivalent to eunuchs. That's not the way it's defined. See the Act, it covers all spectrums and shades. It includes trans man, trans woman, persons with intersex variations, gender queer, persons having socio-cultural identity such as Kinnar, Hijras etc [sic]."
CJI Chandrachud, however, noted that "anyone who's lesbian or gay need not be a transgender person."
"Cisgender is the gender you're born with. Now, there may be some variations but as a principle, but lesbians belong to the cisgender category because there is no reassignment or assuming a different gender later," the CJI said.
It is important to understand that one's gender identity and sexual orientation are two separate things. Both cisgender and transgender people can have any sexual orientation – that is, they can be heterosexual, gay, lesbian, bisexual, etc.
SG Mehta further claimed that "persons in the L or G category in LGBTQ are not stigmatised," to which the CJI responded:
"They're very badly stigmatised. In fact, the parliamentary debate on the 1954 Act shows that there was a considerable degree of stigma attached."
'Can't Touch SMA Without Getting Into Personal Laws': SG Mehta
Earlier in the day, SG Mehta argued that changing the provisions of the Special Marriage Act – as the petitioners have demanded – would inadvertently result in getting into personal laws.
"The petitioners have prayed to rewrite and restructure the SMA to suit a particular class of people… it perhaps may not be an option not to go into the personal laws while dealing with SMA. It may not be a choice not to touch other personal laws. It is interwoven," Mehta argued.
Responding to his pleas, CJI Chandrachud said that the court can conceptualise the Solicitor General's arguments by saying that "reinterpreting provisions of the SMA will have three major problems":
"You are saying that the problems are: it will involve substantial rewriting of legislation, it may also involve the court ignoring some provisions which have been introduced as a matter of public policy (such as additional grounds for women in divorce cases), and third, you're saying that it would involve a reinterpretation of personal laws because there are segments of SMA which specifically contain reference to personal laws."
Raising questions about alimony, SG Mehta argued that "if your lordships were to read 'person' in place of husband or wife, one person will have the right to claim maintenance from another. Meaning, in the case of heterosexual marriages, husband can claim from wife."
"The right of a non-LGBT wife will be taken away because the husband can also claim alimony," he added.
Justice Hima Kohli, who is part of the bench, responded, saying:
"But that's happening in heterosexual marriages too. We've all come across that at different times in our jurisdictions where the husband also claims."
"But here, only the wife can get it, the husband is under an obligation to give her maintenance. Here, there cannot be a decision on who is the wife in a same-sex relationship," Mehta contended.
He further asked "who will be a wife" in a marriage between two men, and who would have the grounds to file a divorce.
"Then there is a problem. The problem is: can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted?"
What else did SG Tushar Mehta say?
For domicile, it cannot be decided who will be the woman. For passports etc, this issue will arise. The Succession Act provides for widow, widower, husband, wife, father, mother etc.
Let's say marriage is permitted. The couple adopts and then someone dies. So, who will be treated as father and who will be mother? This is a dilemma and cannot be foreseen by your lordships.
There is different eligibility to adopt a child. If it's a man, he cannot adopt a girl child less than 21 years of difference. If it is a female, she cannot adopt a male that way. So, it cannot be gender neutral.
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