Unwillingness Of Centre To Grant Same-Sex Marriage: Supreme Court Hearing Day 6

Day 6 of the Supreme Court hearing saw the Solicitor General make strong points against same-sex marriages being adopted in India. SG Tushar Mehta went as far as to state that the matrimonial benefits enjoyed by heterosexual couples denied to the queer community can be contemplated; however, the state is not bound to recognise all relationships.

Day 6 of the Supreme Court hearing was initiated by the Chief Justice of India declaring that no arguments, specifically same-sex marriage being in the legislative domain be repeated as it wastes the court's time.

SG Mehta launched his arguments depending on the personal law violations that may appear if same-sex marriage were granted legal recognition in India.

The next date of hearing on same-sex marriages is May 3.

SC Same-Sex Marriage Hearing

SG Mehta argued that a gender-neutral reading of the Special Marriage Act (SMA) or other acts could not be allowed as gender fluidity may pose an obstacle for personal laws which were created with the concept of a biological man and woman in mind.

The first question that arises in any individual's mind upon hearing this is that if the laws pose an issue, then can the least not be amended or done away with?

Unfortunately, the latter is next to impossible. For instance, SMA sets the minimum age of marriage for a female as 18 years. Now if the SMA is done away with, then females might fall prey to child marriage, an evil that took long to eliminate.

SG Mehta argued that the SMA was not created with the intent of including same-sex couples. It was only meant for heterosexual interfaith couples. He argued that allowing same-sex marriages to take place will pose a problem when it comes to identifying the wife, the widower, the mother, or a sister in a relationship.

Wives are entitled to maintenance when a marriage dissolves should they be eligible for it. Widows are entitled to their share of inheritance after their husbands pass. In same-sex relationships how does one determine who is to pay maintenance to whom and who is entitled to inherit?

SG Mehta went above and beyond including conveying incest taking place as a result of granting same-sex couples marital recognition. Mehta argued that a gender-neutral reading of the SMA would render the degree of prohibited relationships invalid and that would enable incest and thereafter polygamy. The CJI commented that this was a far-fetched argument.

The CJI conveyed in today's hearing that procreation cannot be held as a condition for granting marital recognition as this does not hold even for a heterosexual couple. A girl may have opted for a hysterectomy during childhood.

SG Mehta also brought forward that applying rape to same-sex couples would prove problematic because the word 'penetrative' would not apply to all same-sex couples.

With little understanding of transgender sexuality, SG Mehta's comment on equating transgender persons to eunuchs elicited the exasperation of Advocate Kirpal in court.

The bench acknowledged that amending the SMA would leave open Pandora's box of personal litigation that may not be in the court's domain of hearing. However, CJI also expressed the need for same-sex couples to have access to the same amenities as heterosexual couples like a joint bank account, and joint adoption irrespective of gender identity.

SG Mehta expressed willingness on behalf of the legislature to go into the aforementioned specific areas to make laws benefiting same-sex couples. However, he refused any obligation of the state to recognise matrimonial ties between queer individuals as the right to love, cohabit and choose a partner need not necessarily amount to marital recognition.

Today more than 20 petitions have been filed before the Supreme Court where queer petitioners staying in India and abroad are pleading for the same matrimonial ties that heterosexual people enjoy. The bench held that a marriage-like recognition is needed for them to enjoy the same status as everyone else. But a concerning question is, why not marriage itself?

Suggested Reading: Day 5 Of Same-Sex Marriage Hearing: ‘Laws Needs To Have Gender-Neutral Reading’