The Supreme Court on Tuesday resumed hearing in the 19 petitions seeking legal recognition for same-sex marriages in India on the grounds that the right to marry a person of one’s choice should be extended to the members of LGBTQIA+ community also.
The Constitution Bench of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli had started hearing the petitions on April 18.
While the CJI, Justice Narasimha and Justice Kohli sat for hearing in physical mode, Justice Kaul and Justice Bhatt joined the Constitution Bench through video-conferencing.
Appearing for one of the petitioners, Advocate Geeta Luthra said this was the only petitioner couple in the case, who have been legally married for six years. Their marriage was registered in Texas, US. They also have a daughter, said the lawyer, adding that this was an important secular work.
Luthra said that today, 34 countries have accepted the same-sex marriages. This was not the case in India, she noted, calling it a discrimination on the basis of gender.
Calling marriage a revolutionary concept, the Advocate said marriage has never been a static concept, but has always remained a concept that changed with the times.
The petitioner couple highlighted the discrepancy of their life by saying that when they were outside the country, they were a couple, however, as soon as they came to India, their marriage became invalid.
They claimed that no one could circumvent their rights. They said just because they were living abroad, it did not mean their rights as an Indian citizen could be denied. The couple claimed that once they came to this country, they became strangers because their fundamental rights were not enforced.
They sought legal recognition to same-sex marriages on the grounds that it would help them in getting their rights in this country.
Senior Advocate Anand Grover, representing one of the petitioners, rejected the notion given by the Central government that same-sex relationships was an urban and elitist concept.
He said the right to intimate association could be read into Article 21 in addition to privacy, autonomy and dignity.
Appearing for a transgender activist, Senior Advocate Jayna Kothari argued that the notion that a family always has a father and mother may not be correct. She said there were situations where one spouse had died or that they were separated, but none of these situations were different from the heterogeneous ones.
She asked whether a family could be differentiated because of gender identity.
Kothari contended that since the Right to family was recognised under Article 21 thus, the right to marry also has to be granted to same-sex couples.
Also representing the petitioners, Senior Advocate Menaka Guruswamy submitted that the Apex Court need not wait for the Parliament to legislate to fill up a vacuum.
Calling the provisions of the Special Marriage Act, which did not recognise same-sex marriages as being unconstitutional, the Senior Counsel said that marriage was a matter of conscience under Article 25.
India’s first openly gay lawyer, Advocate Saurabh Kirpal argued that prevention of queer marriages in India by not granting them legal recognition may lead to lavender marriages between a man and woman, where either or both the spouses were homosexual.
He said that if non-heterosexuals were prevented from marrying, it would lead to lavender marriages, which in turn, would ruin two lives.
The lawyer said there was nothing more detrimental than a gay man marrying and cheating a lady that way. He said often, homosexuals left the country in search of legal recognition of their relationships outside, which was leading to a “gay brain drain” in India.
The hearing will continue tomorrow, when the Counsel for the petitioners will wrap up their arguments in 45 minutes. Solicitor General Tushar Mehta will then make submissions on behalf of the Central government.