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Constitution Bench Reserves Judgment In Same Sex Marriage Case

The arguments for the Petitioners have been led by Mukul Rohatgi, Sr. Adv. assisted by Mr. Saurabh Kirpal, Sr. Adv., Dr. Maneka Guruswamy, Sr. Adv., Arundhati Katju, Advocate, and a team of advocates from Karanjawala & Co., Advocates.

The Constitution Bench of the Supreme Court of India comprising of the Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha continued with hearing submissions on behalf of the Respondents in a batch of petitions pertaining to ‘marriage equality rights for LGBTQAI+ community’.

When the matters were called out, Dr. Abhishek Manu Singhvi, Sr. Adv continued with the rejoinder submissions on behalf of the Petitioners. At the outset, he expressed his agreement that there exist angularities around the subject in question but the Court has, even in the past, dealt with such situations. 

He submitted that the Petitioners’ approach is consistent in principle with the two anchoring points being the underlying thrust of the SMA and the fundamental rights in the Constitution. He further submitted that the Court may declare that provisions of the SMA with respect to solemnisation and registration of marriage are extended to non-heterosexual couples, except to the extent that provisions of the SMA or any other law in force are enacted for a “wife” against “husband” in a heterosexual marriage or for a “woman” against a “man” in a gender-specific context.

Further, on age, he submitted that in case of same-sex couples, provision may be read as prescribing 18 years for lesbian couples and 21 years for gay couples. In case of transgender persons, the above ages would apply basis the gender/sex they identify by. While concluding, he submitted that a separate regime of civil unions is not the solution to recognise their relationships of love as that would be akin to reviving from its jurisprudential grave the ‘separate-but-equal’ doctrine that is simply known as segregation.

Thereafter, Raju Ramachandran, Sr. Adv. advanced his rejoinder submissions and submitted that lack of recognition leads to denial of equal protection of laws. He submitted that three issues being Triple Talaq, Transgender and Data Protection, did not have a prominent problem with majority of the legislation. He further relied on Madhu Kishwar, Githa Hariharan and Bengal Co-Operative Society where the Hon’ble Court undertook the process of reading in. He requested that the Hon’ble Court should walk the full mile and not stop at a declaration. Accordingly, he submitted the SMA should be interpreted in expansive manner to include LGBTQIA+ community but without interfering in three areas (i) provisions specifically related to protection of wife/women, (ii) gender specific penal laws and (iii) religious personal laws interwoven through Section 21A of the Special Marriage Act, 1954. Lastly, he pleaded that the notice provisions of the SMA are making the rights granted illusory.

Thereafter, KV Vishwanathan, Sr. Adv. appeared and submitted that there is a right to marry and a corresponding duty in the Union to recognise the association of non-heterosexual couples as married couples in a non-discriminatory manner. Mr. Vishwanathan further submitted that the Respondents’ argued that incestuous relations, three people coming together, which are barred in heterosexuals, would also be sought, however that’s not the case. The Petitioners are only seeking what has been given in heterosexual couples. He submitted that post - Navtej, when homosexual relations were declared to be natural, there is a duty to declare and protect these relations. He argued that the deprivation of any right or privilege to same sex couples is a violation of the fundamental right equality under Article 14. 

Thereafter, Ms. Geeta Luthra, Sr. Adv. appeared virtually and submitted that the Bench should also consider taking interpretative exercise for Foreign Marriage Act, 1969, as it is also a secular act. She further submitted that constitutional morality shall have bearing over and above the social morality. Thereafter, she submitted that taking into account constitutional comity, the Hon’ble Court should allow right to marriage to members of LGBTQAI+ community, as it has already been allowed in few nations from where India has adopted its Constitution.

Thereafter, Anand Grover, Sr. Adv. submitted that the stigma which British laws attached to the LGBTQAI+ community is continuing till date and cannot be countenanced by the Hon’ble Court. Failure to allow marriage continues the stigma. While Article 19(1)(c) gives a fundamental right to association, it is realised by marriage. While the Respondents have applauded judgments in Naz Foundation and Navtej, their stand to stop at that perpetuates the stigma. In case the Court agrees with the Respondents, the Court would be further perpetuating the stigma. He submitted that the Respondents’ denial for legitimisation of the same-sex marriages is only because of their lack of acceptance. He submitted that until the Parliament enacts, the SMA can be a conduit.

Jayna Kothari, Sr. Adv relied on legislative debates of Special Marriage Act, 1954 and submitted that it was enacted for freedom of marriage as a special enabling act.  Thus, it should be expanded using the principles of reading in or purposive interpretation. 

Thereafter, Dr. Maneka Guruswamy, Sr. Adv. addressed the Hon’ble Bench with regards to concerns surrounding same-sex parenting and adoption rights for LGBTQAI+ community. She relied on a statement by Indian Psychiatric Society which stated that if  the LGBTQAI+ community are not able to partake civil benefits, such discrimination  leads to mental health issues. 

Thereafter, Saurabh Kirpal, Sr. Adv.  submitted that unworkability is no barrier to constitutional examination. He emphasised that a declaration of marriage must be formalised as it is necessary for any two persons wishing to get married to have documentary evidence of the same. He commended two ways in which that may be done either through solemnisation of a marriage under Section 4 read with Section 12 of the Special Marriage Act, 1954; or registration of a marriage under Sections 15 and 16 of the Special Marriage Act, 1954; or (III). 

Thereafter, brief rejoinder submissions were advanced by Vrinda Grover, Karuna Nundy, Arundhati Katju, Advocates. Katju submitted that the Respondent’s contention that a a declaration will bind the parliament, is incorrect. Several declarations and directives issued by the Court such as transgenders or vishaka guidelines. These were followed up by legislature. Moreover, no declaration in the past has ever put a stop to legislative debates and public debates.

Arguments on behalf of both parties concluded and the Hon’ble Court has reserved judgment.

The arguments for the Petitioners have been led by Mukul Rohatgi, Sr. Adv. assisted by Mr. Saurabh Kirpal, Sr. Adv., Dr. Maneka Guruswamy, Sr. Adv., Arundhati Katju, Advocate, and a team of advocates from Karanjawala & Co., Advocates. Dr. Abhishek Manu Singhvi, Sr. Adv., Raju Ramachandran, K.V. Vishwanathan, Geeta Luthra, Anand Grover, Jayana Kothari have appeared on behalf of various Petitioners. Solicitor General, Attorney General, Aishwarya Bhati, ASG appeared on behalf of Union. Rakesh Dwivedi and Kapil Sibal, Sr. Advocates appeared on behalf of other Respondents.


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supreme court of india same sex marriage

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