The Supreme Court on Thursday, while observing that granting legal recognition to same-sex marriages fell within the legislative domain, sought the Central government’s response on whether the same-sex couples could be given certain social welfare benefits and rights, without granting them marital status.
The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha observed that the Court’s objective in hearing the case was to ensure that some means were devised to grant same-sex couples social and other benefits and legal rights without giving them marriage equality.
The Apex Court pointed out that law granted certain rights to heterosexual couples living together for a long time, though not formally married. It asked whether similar benefits could be extended to same-sex couples, in order to prevent ostracisation of such couples.
It further sought to know from the Centre whether some steps could be taken to give financial security to same-sex couples by allowing them to have a joint-bank account or name their partner as nominee in an insurance policy.
The CJI, while referring to the old Privy Council principle that long cohabitation will raise presumption of marriage, said that the Apex Court was not taking up the issue right now at all.
While taking in view the Central government’s submission that the court’s remit was not to legislate, the Bench said it wanted to ensure security and social welfare of these cohabitory relationships so that in future, these relationships ceased to be ostracised in the society.
The SG then said that these were all human concerns, which even the government shared.
The CJI then asked the Union of India to make a statement and indicate what steps it was willing to take, adding that the court was seeking the Centre’s assistance on the subject in a non-adversarial manner.
Noting that after the decriminalisation of homosexuality in 2018, many persons would have come out of the closet and were continuing in such relationships, Justice Kaul asked the SG whether the government has given any thought about their day-to-day problems.
Citing the example of live-in relationships, Justice Kaul said it also fell in a similar category. Similar problems were bound to arise here in different aspects, such as bank accounts, adoption and many other things. The government should think about this aspect, he told the SG.
The top law officer assured the Bench that he would assist the court qua, so far as possible and legally permissible, on removal of barriers without any legal or statutory recognition. He said whatever administratively could be done, would be seen. The SG added that his stand on this will not be adversarial.
Justice Bhat then observed that the Centre may not want to confer any status to same-sex couples, but it needs to bring down the barriers. The Constitution Bench will now hear the matter on May 3.
The text of hearing on Day 6 is as follows:
SG Mehta: As I had indicated yesterday, I have examined certain provisions of Special Marriage Act 1954. For example S2(a) talk about degrees of prohibited relationships.
If same sex is permitted as argued by petitioners, it will result in rewriting of the act. The provision cannot be read to mean A in one class and B in the second class
Bench: These degrees of Prohibited Relationship come from where?
SG: Sapinda from Hindu Marriage Act.
Bench: I am entitled to my autonomy by virtue of my sexual orientation and it is not the matter of choice is the argument of the other side.
SG Mehta: Suppose, from the beginning, I am attracted to those people who are in Prohibited Degree of Relationship. The progeny of that relationship is incest which is worldwide prohibited.
Bench: No, this argument is farfetched.
SG Mehta: State has no business to regulate any personal relationship. The state can regulate some if it is in the interest of the state. Therefore, marriage was not a regulated relationship. But the state in its legislative policy wisdom decided that it will regulate.
SG Mehta: Now if we come back to the Special Marriage Act 1954, Procreation means the union between men and women…
Bench: Yes, we are getting the drift of the your argument. Not able to have child doesn’t mean invalid marriage. And it is common in heterosexual couples as well.
SG Mehta reads out Section 15 of the Act.
- Registration of marriages celebrated in other forms.―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:― (a) a ceremony of marriage has been performed between the parties and they have .been living together as husband and wife ever since;……..
In all this sections Husband and wife has been used only. So in same sex marriage who will be the Husband and wife is a question that needs to be considered.
SG Mehta: Also, if we look at Section 27: 2 [(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent―
8 [(1A) A wife may also present a petition for divorce to the district court on the ground,― (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; (ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]
Who will be the wife in the same sex marriage is the issue under Special Marriage Act. Same provision can not be applied differently to the same class
Section 31 : Court to which petition should be made.―2 [(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction– (i) the marriage was solemnized; or (ii) the respondent, at the time of the presentation of the petition resides; or (iii) the parties to the marriage last resided together; or 3 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]
In case of gay marriage who will be the wife. This question will arise. And we have to deal with the same
Section 36 : Alimony pendente lite.―Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the court to be reasonable.
Now if we read person applicable to all, who will be the wife in gay/lesbian marriage?
39A. Enforcement of decrees and orders.―All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]
In short, allowing the same sex marriage will result in re-writing of the provisions.
Bench : As per you by Reading the provision of SPA if we allow same sex marriage, there would be major problems like : Substantive rewriting of provision, personal laws, etc.
SG Mehta : Yes my lords. By allowing gay and lesbians marriages The special marriage act will apply differently to same class of people. Further, it would open Pandora’s box which the court cannot conceive right now. How other provisions will become unworkable, let me show that as well.
For example, Indian Succession Act applies to all. In the same sex marriage, who will be the widow is the question which is not clear.
(Case title: Supriyo alias Supriya Chakraborty and Anr vs Union of India)