News Analysis India

Tag: marriage equality

  • Same-sex marriage verdict: Right to enter union includes right to choose partner, its recognition, says CJI

    By Online Desk

    The Supreme Court is all set to announce its verdict on a batch of pleas seeking legal recognition of same sex marriages in the country. 

    A five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, had a 10-day-long hearing on the matter.

    CJI Chandrachud on Tuesday stated, “The right to enter into Union includes the right to choose one’s partner and the right to recognition of that union,” adding that failure to recognise it would be discriminatory. “Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.”

    He went on to add that it would also be discriminatory if the law assumed that only heterosexual couples can be good parents. 

    On the topic of adoption by queer coiples, the CJI said that, “The Juvenile Justice (Care and Protection of Children) Act, 2015, does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So, the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.”

    “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.

    #SameSexMarriage | Right to enter into a union cannot be restricted on the basis of sexual orientation: CJI Chandrachud.Express photo | @ParveenPhoto. pic.twitter.com/rwjrTmH0tX
    — The New Indian Express (@NewIndianXpress) October 17, 2023
    While Justice S K Kaul agreed with the CJI on grant of certain rights to queer couples, Justice S Ravindra Bhat said that he both agreed and disagreed with the views of CJI Chandrachud on certain points.

    Asserting that homosexuality or queerness was “not an urban concept or restricted to upper class of society”, CJI Chandrachud said, “To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class.”

    CJI Chandrachud also said, “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny.”

    The Chief Justice also directed the police to conduct a preliminary enquiry before registering FIR against queer couple over their relationship, adding that the Centre, States and Union Territories must ensure that the queer community was not discriminated against.

    Other directions of the CJI to end discrimination against queer people include: 1. No discrimination in access to goods and services, 2. A hotline for the queer community, 3. Safe houses for queer couple, 4. ensure inter-sex children are not forced to undergo operations, 5. No person shall be forced to undergo any hormonal therapy, 6. Police should not force queer persons to return to their natal family.

    Meanwhile, Solicitor General (SG) Tushar Mehta said that the Centre would form a panel to decide the rights, and entitlements of persons in queer unions.

    Here are highlights from the CJI’s remarks:

    On sex-change operation: States, Union Territories to ensure that inter-sex children are not allowed sex-change operation at an age when they cannot fully comprehend its consequences, the CJI said
    On hetereosexual unions of trans people: CJI Chandrachud said that the marriage between a trans man and a trans woman can be registered under the Special Marriage Act as they are in a heterosexual relationship
    On whether the SMA needs a change: The top judge also remarked that only the Parliament can decide whethere there was a need for change in the regime of the Special Marriage Act. “If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.”
    The CJI added that the top court was not equipped to undertake such an exercise of reading meaning into the statute and that they must be careful to not enter into legislative domain
    No harassment of queer people by cops: “There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family,” the CJI said.
    Justice Sanjay Kishan Kaul said that legal recognition of non-heterosexual unions was a step towards marriage equality.

    While hearing the matter on May 11, the top court bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it. Follow The New Indian Express channel on WhatsApp

    The Supreme Court is all set to announce its verdict on a batch of pleas seeking legal recognition of same sex marriages in the country. 

    A five-judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, had a 10-day-long hearing on the matter.

    CJI Chandrachud on Tuesday stated, “The right to enter into Union includes the right to choose one’s partner and the right to recognition of that union,” adding that failure to recognise it would be discriminatory. “Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.”googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });

    He went on to add that it would also be discriminatory if the law assumed that only heterosexual couples can be good parents. 

    On the topic of adoption by queer coiples, the CJI said that, “The Juvenile Justice (Care and Protection of Children) Act, 2015, does not preclude unmarried couples from adopting. The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So, the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.”

    “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” he said.

    #SameSexMarriage | Right to enter into a union cannot be restricted on the basis of sexual orientation: CJI Chandrachud.
    Express photo | @ParveenPhoto. pic.twitter.com/rwjrTmH0tX
    — The New Indian Express (@NewIndianXpress) October 17, 2023
    While Justice S K Kaul agreed with the CJI on grant of certain rights to queer couples, Justice S Ravindra Bhat said that he both agreed and disagreed with the views of CJI Chandrachud on certain points.

    Asserting that homosexuality or queerness was “not an urban concept or restricted to upper class of society”, CJI Chandrachud said, “To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one’s caste or class.”

    CJI Chandrachud also said, “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State’s scrutiny.”

    The Chief Justice also directed the police to conduct a preliminary enquiry before registering FIR against queer couple over their relationship, adding that the Centre, States and Union Territories must ensure that the queer community was not discriminated against.

    Other directions of the CJI to end discrimination against queer people include: 1. No discrimination in access to goods and services, 2. A hotline for the queer community, 3. Safe houses for queer couple, 4. ensure inter-sex children are not forced to undergo operations, 5. No person shall be forced to undergo any hormonal therapy, 6. Police should not force queer persons to return to their natal family.

    Meanwhile, Solicitor General (SG) Tushar Mehta said that the Centre would form a panel to decide the rights, and entitlements of persons in queer unions.

    Here are highlights from the CJI’s remarks:

    On sex-change operation: States, Union Territories to ensure that inter-sex children are not allowed sex-change operation at an age when they cannot fully comprehend its consequences, the CJI said
    On hetereosexual unions of trans people: CJI Chandrachud said that the marriage between a trans man and a trans woman can be registered under the Special Marriage Act as they are in a heterosexual relationship
    On whether the SMA needs a change: The top judge also remarked that only the Parliament can decide whethere there was a need for change in the regime of the Special Marriage Act. “If Special Marriage Act is struck down, it will take the country to pre-Indpendence era. If the Court takes the second approach and reads words into the SMA, it will be taking up the role of legislature.”
    The CJI added that the top court was not equipped to undertake such an exercise of reading meaning into the statute and that they must be careful to not enter into legislative domain
    No harassment of queer people by cops: “There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family,” the CJI said.
    Justice Sanjay Kishan Kaul said that legal recognition of non-heterosexual unions was a step towards marriage equality.

    While hearing the matter on May 11, the top court bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it. Follow The New Indian Express channel on WhatsApp

  • SC to deliver verdict on legal validation of same sex marriages on Tuesday

    Express News Service

    NEW DELHI: The Supreme Court will deliver on Tuesday its judgement on pleas seeking legal recognition of same-sex marriages in India.

    On May 11, after an extensive 10-day-long hearing, a Constitution bench led by the Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had reserved their verdict.

    The top court’s judgement will decide as to whether the words ‘man’ and ‘woman’ can be replaced with the word person and the words ‘husband’ and ‘wife’ can be replaced with the word ‘spouse’ in the Special Marriage Act (SMA).

    The bench had also said that the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.

    Some of the petitioners had urged the apex court to use its plenary power, “prestige and moral authority” to push the society to acknowledge such a union which would ensure LGBTQIA++ people to lead a “dignified” life like heterosexuals. LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.

    Notably on the first day of the hearing, the bench had defined the contours of the pleas and had said that it would not go into personal laws governing marriage and instead will look into the issue of registration of same-sex marriages under the Special Marriage Act.

    Another significant development which took place during the hearing was willingness to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage.

    While hearing the matter on May 11, the bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it.

    Meanwhile, the petitioners in their rejoinder submission on Thursday last week submitted that they were not seeking the interpretation of every gendered word in the SMA in a gender-neutral way. They said they were only assailing those parts of the SMA that require a Constitution-compliant reading on grounds of discrimination.

    Senior advocate Abhishek Manu Singhvi said that the state by excluding same-sex couples from civil marriage was declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.

    “When it comes to the use of gendered terms to specifically address gendered imbalances of power and therefore achieve substantive equality, limiting such terms to their gendered, heterosexual context is what is consistent with the law’s underlying thrust. Civil union is not a solution, not an equal alternative. Civil unions do not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage,” Singhvi said.

    Senior Advocate Raju Ramachandran said that lack of recognition leads to the denial of equal protection under the law.

    Arguments were also made by Senior advocates KV Vishwanathan, Anand Grover, Geeta Luthra, Maneka Guruswamy, and advocates Karuna Nundy, and Vrinda Grover.

    The petitioners underlining the real question before the court which was “who would take a call on what constitutes a valid marriage and between whom”, also contended that the Parliament was aware of the concept of “gays” and “lesbians” even while the Special Marriage Act was promulgated in 1954 but there was a “conscious omission” to not recognise same sex marriages.

    During the arguments, the Centre had told the apex court that any constitutional declaration made by it on the petitions seeking legal validation for same-sex marriage may not be a “correct course of action” as the court will not be able to foresee, envisage, comprehend and deal with its fallout.

    The Centre’s stand has been that the issue of legal recognition of same-sex marriages through the SMA should be left for the Parliament to decide since it is the appropriate forum to conceive several situations which would arise from recognising the same “legally.”

    The Centre had also told the top court that the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners’ contention seeking legal endorsement for such wedlock.

    Stressing on the fact that all the civil as well as criminal laws define “man and woman in conventional sense”, the Centre had submitted that the right to marry does not include the right to compel the state to create a new definition of ‘marriage’.

    On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

    The Centre’s submission was pursuant to the apex court asking it on April 27 whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.

    (With additional inputs from PTI) Follow The New Indian Express channel on WhatsApp

    NEW DELHI: The Supreme Court will deliver on Tuesday its judgement on pleas seeking legal recognition of same-sex marriages in India.

    On May 11, after an extensive 10-day-long hearing, a Constitution bench led by the Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had reserved their verdict.

    The top court’s judgement will decide as to whether the words ‘man’ and ‘woman’ can be replaced with the word person and the words ‘husband’ and ‘wife’ can be replaced with the word ‘spouse’ in the Special Marriage Act (SMA).googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2′); });

    The bench had also said that the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.

    Some of the petitioners had urged the apex court to use its plenary power, “prestige and moral authority” to push the society to acknowledge such a union which would ensure LGBTQIA++ people to lead a “dignified” life like heterosexuals. LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally persons.

    Notably on the first day of the hearing, the bench had defined the contours of the pleas and had said that it would not go into personal laws governing marriage and instead will look into the issue of registration of same-sex marriages under the Special Marriage Act.

    Another significant development which took place during the hearing was willingness to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage.

    While hearing the matter on May 11, the bench had observed it cannot give a declaration on same-sex unions on the anticipation as to how Parliament is likely to respond to it.

    Meanwhile, the petitioners in their rejoinder submission on Thursday last week submitted that they were not seeking the interpretation of every gendered word in the SMA in a gender-neutral way. They said they were only assailing those parts of the SMA that require a Constitution-compliant reading on grounds of discrimination.

    Senior advocate Abhishek Manu Singhvi said that the state by excluding same-sex couples from civil marriage was declaring that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.

    “When it comes to the use of gendered terms to specifically address gendered imbalances of power and therefore achieve substantive equality, limiting such terms to their gendered, heterosexual context is what is consistent with the law’s underlying thrust. Civil union is not a solution, not an equal alternative. Civil unions do not address the constitutional anomaly presented by exclusion of non-heterosexual couples from the institution of marriage,” Singhvi said.

    Senior Advocate Raju Ramachandran said that lack of recognition leads to the denial of equal protection under the law.

    Arguments were also made by Senior advocates KV Vishwanathan, Anand Grover, Geeta Luthra, Maneka Guruswamy, and advocates Karuna Nundy, and Vrinda Grover.

    The petitioners underlining the real question before the court which was “who would take a call on what constitutes a valid marriage and between whom”, also contended that the Parliament was aware of the concept of “gays” and “lesbians” even while the Special Marriage Act was promulgated in 1954 but there was a “conscious omission” to not recognise same sex marriages.

    During the arguments, the Centre had told the apex court that any constitutional declaration made by it on the petitions seeking legal validation for same-sex marriage may not be a “correct course of action” as the court will not be able to foresee, envisage, comprehend and deal with its fallout.

    The Centre’s stand has been that the issue of legal recognition of same-sex marriages through the SMA should be left for the Parliament to decide since it is the appropriate forum to conceive several situations which would arise from recognising the same “legally.”

    The Centre had also told the top court that the governments of Rajasthan, Andhra Pradesh and Assam had opposed the petitioners’ contention seeking legal endorsement for such wedlock.

    Stressing on the fact that all the civil as well as criminal laws define “man and woman in conventional sense”, the Centre had submitted that the right to marry does not include the right to compel the state to create a new definition of ‘marriage’.

    On May 3, the Centre had told the court it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

    The Centre’s submission was pursuant to the apex court asking it on April 27 whether social welfare benefits like opening joint bank accounts, nominating life partner in provident funds, gratuity and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.

    (With additional inputs from PTI) Follow The New Indian Express channel on WhatsApp

  • Same-sex marriage: Will form panel to address concerns of couples, centre tells SC

    By PTI

    NEW DELHI: The Centre on Wednesday told the Supreme Court that a committee headed by the cabinet secretary would be constituted to explore administrative steps for addressing some concerns of same-sex couples without going into the issue of legalising their marriage.

    Solicitor General Tushar Mehta, appearing for the Centre, told a five-judge Constitution bench headed by Chief Justice D Y Chandrachud, which is hearing a batch of pleas seeking legal validation of same-sex marriage, that the government is positive about the suggestion for exploring administrative steps in this regard.

    He told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, that this will need coordination between more than one ministries.

    ALSO READ | Are binary spouses necessary for marriage, asks SC on same-sex marriage

    On the seventh day of the hearing in the matter, Mehta said the petitioners can give their suggestions on the issue of exploring what administrative steps can be taken in this regard.

    While hearing the matter on April 27, the apex court had asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.

    The court had posed the question after observing that the Centre’s acceptance of the right to cohabitation of same-sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences.

    READ MORE:

    State can’t discriminate individual based on sexual characteristic: SC

    Recognize same-sex marriages to help us lead dignified lives: Petitioners

    ‘Notion of man, woman not absolute’ based on genitals: SC on same-sex marriage

    NEW DELHI: The Centre on Wednesday told the Supreme Court that a committee headed by the cabinet secretary would be constituted to explore administrative steps for addressing some concerns of same-sex couples without going into the issue of legalising their marriage.

    Solicitor General Tushar Mehta, appearing for the Centre, told a five-judge Constitution bench headed by Chief Justice D Y Chandrachud, which is hearing a batch of pleas seeking legal validation of same-sex marriage, that the government is positive about the suggestion for exploring administrative steps in this regard.

    He told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha, that this will need coordination between more than one ministries.googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });

    ALSO READ | Are binary spouses necessary for marriage, asks SC on same-sex marriage

    On the seventh day of the hearing in the matter, Mehta said the petitioners can give their suggestions on the issue of exploring what administrative steps can be taken in this regard.

    While hearing the matter on April 27, the apex court had asked the Centre whether social welfare benefits can be granted to same-sex couples without going into legalising their marriage.

    The court had posed the question after observing that the Centre’s acceptance of the right to cohabitation of same-sex partners as a fundamental right cast a “corresponding duty” on it to recognise its social consequences.

    READ MORE:

    State can’t discriminate individual based on sexual characteristic: SC

    Recognize same-sex marriages to help us lead dignified lives: Petitioners

    ‘Notion of man, woman not absolute’ based on genitals: SC on same-sex marriage

  • LGBTQIA++ collectives of law school students condemn BCI resolution on same-sex marriage

    By PTI

    NEW DELHI: More than 30 LGBTQIA++ collectives of law school students have said the Bar Council of India resolution urging the Supreme Court not to deal with pleas seeking legalisation of same sex marriage is “antithetical” to the Constitution.

    The apex bar body, on April 23, had expressed its concern on the same-sex marriage issue being heard in the Supreme Court, saying it would be “catastrophic” to overhaul something as fundamental as the concept of marriage and the matter should be left to the legislature.

    The resolution, which was issued by the Bar Council of India (BCI) after a joint meeting attended by representatives of all state bar councils, said any decision by the apex court in such a sensitive matter may prove very harmful for the future generation of the country.

    “India is one of the most socio-religiously diverse countries of the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through legislative process only, the meeting unanimously opined,” the council had said.

    It added that “any decision by the apex court in such a sensitive matter may prove very harmful for the future generation of our country”.

    Condemning the stand of the BCI, the LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) collectives of over 600 law school students said, “The (BCI) resolution is ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life.”

    “It attempts to tell queer persons that the law and the legal profession have no place for them. We, the undersigned, are queer and allied student groups across Indian law schools,” they said in a statement.

    The students belong to 36 law schools, including National Law University Delhi, Faculty of Law, Delhi University and Gujarat National Law University.

    The statement said that as future members of the Bar, it has been alienating and hurtful to see seniors engaged in “such hateful rhetoric”.

    The BCI’s resolution entirely unwarranted and a deplorable attempt to illegitimately create influence for itself, it said.

    The BCI must re-familiarise itself with the role envisioned during its establishment, look at the state of the Indian legal profession, and devote its resources to more pressing challenges rather than needlessly entering constitutional debates, the statement said.

    “We are most troubled by the BCI’s stunning disregard for constitutional morality. Our Constitution is a counterweight to majoritarianism, religious morality, and unjust public opinion,” it said.

    A five-judge Constitution bench comprising Chief Justice D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha is continuing with its hearing arguments on the pleas seeking validation of same sex marriage for the sixth day on Thursday.

    NEW DELHI: More than 30 LGBTQIA++ collectives of law school students have said the Bar Council of India resolution urging the Supreme Court not to deal with pleas seeking legalisation of same sex marriage is “antithetical” to the Constitution.

    The apex bar body, on April 23, had expressed its concern on the same-sex marriage issue being heard in the Supreme Court, saying it would be “catastrophic” to overhaul something as fundamental as the concept of marriage and the matter should be left to the legislature.

    The resolution, which was issued by the Bar Council of India (BCI) after a joint meeting attended by representatives of all state bar councils, said any decision by the apex court in such a sensitive matter may prove very harmful for the future generation of the country.googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });

    “India is one of the most socio-religiously diverse countries of the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through legislative process only, the meeting unanimously opined,” the council had said.

    It added that “any decision by the apex court in such a sensitive matter may prove very harmful for the future generation of our country”.

    Condemning the stand of the BCI, the LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) collectives of over 600 law school students said, “The (BCI) resolution is ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life.”

    “It attempts to tell queer persons that the law and the legal profession have no place for them. We, the undersigned, are queer and allied student groups across Indian law schools,” they said in a statement.

    The students belong to 36 law schools, including National Law University Delhi, Faculty of Law, Delhi University and Gujarat National Law University.

    The statement said that as future members of the Bar, it has been alienating and hurtful to see seniors engaged in “such hateful rhetoric”.

    The BCI’s resolution entirely unwarranted and a deplorable attempt to illegitimately create influence for itself, it said.

    The BCI must re-familiarise itself with the role envisioned during its establishment, look at the state of the Indian legal profession, and devote its resources to more pressing challenges rather than needlessly entering constitutional debates, the statement said.

    “We are most troubled by the BCI’s stunning disregard for constitutional morality. Our Constitution is a counterweight to majoritarianism, religious morality, and unjust public opinion,” it said.

    A five-judge Constitution bench comprising Chief Justice D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha is continuing with its hearing arguments on the pleas seeking validation of same sex marriage for the sixth day on Thursday.

  • Are binary spouses necessary for marriage, asks SC on same-sex marriage

    ENS & Agencies

    NEW DELHI: India’s top court on Thursday observed that its decision to decriminalise homosexuality in 2018 had not just “recognised” same-sex relationships between consenting adults but also the fact that such relationships are “not just physical relations” but something more of a “stable and emotional relationship.”

    The apex court stated that its 2018 judgment had led to a situation where two consenting homosexual adults can live in a marriage-like relationship and the next step could be to validate their relationship as a marriage.

    The five-judge Constitution bench also contemplated whether a relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with the term “spouses” would amount to redoing the legislation.

    “In the last 69 years (since SMA, 1954), our law had really evolved to recognise the fact that when you decriminalised homosexuality you also realised that these are not one of the relationships but these are comprehensive stable relationships. Therefore, by decriminalising homosexuality we have not just recognised treating relationships between consenting adults of the same gender but we have also recognised implicitly, therefore, the fact that people who are of the same sex would be in stable relationships,” the CJI said.

    “Once we have crossed that bridge (decriminalising gay sex) then the next question is as to whether our statute can therefore recognise not just marriage-like relationships but the relationship of marriage,” the bench said, adding, “This requires us to redefine perhaps the evolving notion of marriage.”

    The CJI said to put it really bluntly, is the relationship between a man and a woman so fundamental to the Special Marriage Act that for the court to comprehend that it will also include a relationship between a same-sex couple would be completely “redoing the tapestry of the legislation.”

    “If yes, then obviously we cannot,” Justice Chandrachud said.

    ALSO READ | State can’t discriminate individual based on sexual characteristic: SC

    ‘Are binary spouses necessary?’

    The bench said the law provides a framework for the concept of marriage and it is broad enough to take care of later developments such as same-sex relationships.

    “Is the existence of two spouses who belong to a binary gender necessary requirement for a relationship of marriage or has our law sufficiently progressed to contemplate that the existence of binary gender may not be necessary for your definition of marriage?” the court wondered.

    Reacting to the trolls against the judges for their observations while hearing the pleas, the CJI said, “There are no absolutes as I had said, even at the risk of getting trolled. Now this has become name of the game for judges to confront. Answers to what we say are in the troll and not in the court.”

    CJI DY Chandrachud said, after this verdict (in 2018), our country had “constitutionally and socially”  reached the intermediate stage which contemplated same-sex couples to be in “stable marriage-like relationships.”

    “The object of the law (Special Marriage Act) in 1954 was to bring into its fold people who would be governed by matrimonial relationships apart from their personal law is capable of being broadly read according to you so as to take into account more stable relations of same-sex people,” the CJI remarked while hearing a batch of petitions seeking legal sanction for same-sex marriage pursuant to Senior Advocate AM Singhvi’s submission that the underlying thrust of Special Marriage Act was to not exclude marriage between two persons of the same gender. 

    Laying emphasis on the fact that society has evolved in 69 years, the bench said that Special Marriage Act provided the framework for the concept of marriage which transcends and the framework was broad enough for assimilating later developments.

    Hinting towards redefining the evolving notion of marriage under the Special Marriage Act, CJI Chandrachud clarified that it in the present case would not use the Constitution or its text for reading down or striking down the act but expanding its meaning in the context of constitutional guarantees. 

    Indicating that the bench would hear the pleas on a day-to-day basis akin to the Ayodhya case hearing, the CJI also termed the provision of notice of intended marriage under the Special Marriage Act as having the possibility of affecting couples belonging to the most vulnerable segments of society. 

    ALSO READ | Recognize same-sex marriages to help us lead dignified lives: Petitioners

    ‘Procreation not valid ground to deny right’

    Senior Advocate AM Singhvi for the petitioners argued that the institution of marriage itself is so very important that to deny it to a same-sex couple would be really “contrary to fundamental constitutional values.”

    Senior advocate K V Viswanathan, appearing for one of the petitioners, said recognition should be given to same-sex marriage and procreation is not a valid ground to deny such couples the right to marry.

    He said LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) people are as much qualified to adopt or bring up children as heterosexual couples.

    “Put it this way. Same-sex couples seek the same benefits of marriage save and except for procreation and there are a whole range of benefits which cohabitation and marriage provide which same-sex couple asserts for themselves,” the CJI observed.

    Senior Advocate Raju Ramachandran appearing for a lesbian couple from Chandigarh termed the provision of “notice of intended marriage” under the Special Marriage Act as “retrograde” and “obnoxious.” The notice mandates that a prior 30-day notice seeking objections from the general public is issued before two consenting adults are permitted to solemnize their marriage.

    He said that recognising same-sex marriages would protect homosexual couples from the real possibility of the family intervening and putting an end to the relationship.

    “There is a very real likelihood and not just a remote possibility that this will disproportionately affect situations in which one of the spouses either belongs to a marginalised community or minority. So, it has a disproportionate impact on those who are the most vulnerable segments of our society,” the bench observed.

    The arguments in the matter remained inconclusive and will resume on April 24.

    (With inputs from PTI)

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    NEW DELHI: India’s top court on Thursday observed that its decision to decriminalise homosexuality in 2018 had not just “recognised” same-sex relationships between consenting adults but also the fact that such relationships are “not just physical relations” but something more of a “stable and emotional relationship.”

    The apex court stated that its 2018 judgment had led to a situation where two consenting homosexual adults can live in a marriage-like relationship and the next step could be to validate their relationship as a marriage.

    The five-judge Constitution bench also contemplated whether a relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with the term “spouses” would amount to redoing the legislation.googletag.cmd.push(function() {googletag.display(‘div-gpt-ad-8052921-2’); });

    “In the last 69 years (since SMA, 1954), our law had really evolved to recognise the fact that when you decriminalised homosexuality you also realised that these are not one of the relationships but these are comprehensive stable relationships. Therefore, by decriminalising homosexuality we have not just recognised treating relationships between consenting adults of the same gender but we have also recognised implicitly, therefore, the fact that people who are of the same sex would be in stable relationships,” the CJI said.

    “Once we have crossed that bridge (decriminalising gay sex) then the next question is as to whether our statute can therefore recognise not just marriage-like relationships but the relationship of marriage,” the bench said, adding, “This requires us to redefine perhaps the evolving notion of marriage.”

    The CJI said to put it really bluntly, is the relationship between a man and a woman so fundamental to the Special Marriage Act that for the court to comprehend that it will also include a relationship between a same-sex couple would be completely “redoing the tapestry of the legislation.”

    “If yes, then obviously we cannot,” Justice Chandrachud said.

    ALSO READ | State can’t discriminate individual based on sexual characteristic: SC

    ‘Are binary spouses necessary?’

    The bench said the law provides a framework for the concept of marriage and it is broad enough to take care of later developments such as same-sex relationships.

    “Is the existence of two spouses who belong to a binary gender necessary requirement for a relationship of marriage or has our law sufficiently progressed to contemplate that the existence of binary gender may not be necessary for your definition of marriage?” the court wondered.

    Reacting to the trolls against the judges for their observations while hearing the pleas, the CJI said, “There are no absolutes as I had said, even at the risk of getting trolled. Now this has become name of the game for judges to confront. Answers to what we say are in the troll and not in the court.”

    CJI DY Chandrachud said, after this verdict (in 2018), our country had “constitutionally and socially”  reached the intermediate stage which contemplated same-sex couples to be in “stable marriage-like relationships.”

    “The object of the law (Special Marriage Act) in 1954 was to bring into its fold people who would be governed by matrimonial relationships apart from their personal law is capable of being broadly read according to you so as to take into account more stable relations of same-sex people,” the CJI remarked while hearing a batch of petitions seeking legal sanction for same-sex marriage pursuant to Senior Advocate AM Singhvi’s submission that the underlying thrust of Special Marriage Act was to not exclude marriage between two persons of the same gender. 

    Laying emphasis on the fact that society has evolved in 69 years, the bench said that Special Marriage Act provided the framework for the concept of marriage which transcends and the framework was broad enough for assimilating later developments.

    Hinting towards redefining the evolving notion of marriage under the Special Marriage Act, CJI Chandrachud clarified that it in the present case would not use the Constitution or its text for reading down or striking down the act but expanding its meaning in the context of constitutional guarantees. 

    Indicating that the bench would hear the pleas on a day-to-day basis akin to the Ayodhya case hearing, the CJI also termed the provision of notice of intended marriage under the Special Marriage Act as having the possibility of affecting couples belonging to the most vulnerable segments of society. 

    ALSO READ | Recognize same-sex marriages to help us lead dignified lives: Petitioners

    ‘Procreation not valid ground to deny right’

    Senior Advocate AM Singhvi for the petitioners argued that the institution of marriage itself is so very important that to deny it to a same-sex couple would be really “contrary to fundamental constitutional values.”

    Senior advocate K V Viswanathan, appearing for one of the petitioners, said recognition should be given to same-sex marriage and procreation is not a valid ground to deny such couples the right to marry.

    He said LGBTQIA (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) people are as much qualified to adopt or bring up children as heterosexual couples.

    “Put it this way. Same-sex couples seek the same benefits of marriage save and except for procreation and there are a whole range of benefits which cohabitation and marriage provide which same-sex couple asserts for themselves,” the CJI observed.

    Senior Advocate Raju Ramachandran appearing for a lesbian couple from Chandigarh termed the provision of “notice of intended marriage” under the Special Marriage Act as “retrograde” and “obnoxious.” The notice mandates that a prior 30-day notice seeking objections from the general public is issued before two consenting adults are permitted to solemnize their marriage.

    He said that recognising same-sex marriages would protect homosexual couples from the real possibility of the family intervening and putting an end to the relationship.

    “There is a very real likelihood and not just a remote possibility that this will disproportionately affect situations in which one of the spouses either belongs to a marginalised community or minority. So, it has a disproportionate impact on those who are the most vulnerable segments of our society,” the bench observed.

    The arguments in the matter remained inconclusive and will resume on April 24.

    (With inputs from PTI)

    READ MORE:

    Need to finish matter in time-bound manner:  SC on same-sex marriage hearing

    LGBTQ+ community denounces Centre’s opposition to same-sex marriage

    Activist Akkai seeks apology from BJP member for same-sex marriage remark

    Indian gay couple begin legal battle for same-sex marriage