‘Even At The Risk Of Getting Trolled…’Apr 21, 2023 | Pratirodh Bureau
The Supreme Court on Thursday said it may be redefining the evolving notion of marriage as the next step after decriminalising consensual homosexual relationships, which implicitly recognised that same-sex people could live in a stable marriage-like relationship.
A five-judge Constitution bench headed by Chief Justice D Y Chandrachud, which is hearing a batch of petitions seeking legal sanction for same-sex marriage, did not agree to the contention that unlike heterosexuals same-sex couples cannot take proper care of their children.
The CJI referred to instances of alcohol abuse by heterosexuals in families and the adverse impact it has on children. He said he did not agree to the submission even at the risk of getting trolled.
“Even at the risk of getting trolled, but now this has become the name of the game for the judges to confront. Answers what we say in the court are in the troll and not in the court you know,” the CJI said.
“What happens when there is a heterosexual couple and when the child sees domestic violence? Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night and asking for money for alcohol?” he said.
During the day-long hearing in the matter for the third day on the trot, the bench pondered over whether the relationship between a man and a woman is so fundamental to the Special Marriage Act that substituting them with term spouses will amount to redoing the legislation.
Elaborately referring to its 2018 judgement that decriminalised consensual gay sex, the top court said it 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 marriage.
“Therefore, by decriminalising homosexuality we have not just recognised the relationship between consenting adults of the same gender. We have also recognised implicitly the fact that the people who are of same sex could be in a stable relationship,” said the bench, which also comprised Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
“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 in 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.
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 existence of two spouses who belong to a binary gender necessary requirement for 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.
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 provides which same-sex couple asserts for themselves,” the CJI observed.
Senior advocate Raju Ramachandran, appearing for another petitioner, assailed several provisions of the Special Marriage Act, including the one which mandates that a prior 30-day notice seeking objections from general public is issued before two consenting adults are permitted to solemnize their marriage. If the purpose is to ensure that people don’t enter into a marriage which will suffer from being void, then this is not the least restrictive means which the proportionality test requires us to adopt to ensure that purpose, the bench said.
Ramachandran said the situation which same-sex partners are facing is that the postponement creates 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 apex court said the Special Marriage Act was enacted in 1954 and, in the last 69 years, the law has really evolved to recognise the fact that when homosexual relationships are decriminalised, such relationships are not one off and rather a stable one.
“We think looking at India constitutionally and socially as well, we have already reached the intermediate stage. The intermediate stage postulates that by decriminalising homosexuality, your very act of decriminalising homosexuality does contemplate that therefore people who belong to the same sex would be in a stable marriage-like relationship,” it said.
The arguments in the matter remained inconclusive and will resume on April 24.
During the hearing on Wednesday, the apex court had said the state cannot discriminate against an individual on the basis of sexual characteristics over which the person has no control.
It had asserted that the Centre has no data to back up its claim that the concept of same-sex marriage is “elitist” or “urban”.
The Centre, in one of its affidavits filed in the apex court, termed the petitions a reflection of “urban elitist” view for the purpose of social acceptance and said recognition of marriage is essentially a legislative function which the courts should refrain from adjudicating.
On the first day of hearing on Tuesday, the bench had made it clear that it will not go into personal laws governing marriages while deciding these pleas and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals”.