SAME-SEX MARRIAGE
Friends, you must have read in newspapers/social media about the Supreme Court (SC) hearing a petition filed by LGBTQIA+ members for legalizing same-sex marriages within the purview of the Special Marriage Act. This petition was filed in the SC sometime back, and at that time the court asked the government to file its opinion about the subject in a given time.
Last week the petition came for regular hearing, and there were many arguments between petitioners’ advocates, Solicitor General appearing for the government, and five-judge bench of the SC headed by the Chief Justice of India, DY Chaandrachud, and justices SK Kaul, SR Bhatt, Hima Kohli, and PS Narsimha. The main contention of the SC bench is that everyone should do a reality check by pointing out that nearly three dozen laws governed various rights occurring to spouses from a marriage. Secondly, the canvas-covered by the petitioners demanding marriage rights for same-sex couples does fall in the domain of Parliament.
The CJI said “It was easier for the court to deal with the petitioners’ plea for a declaration from the SC on same-sex couple’s right to marry based on equality, dignity and right to family, leaving many present to ponder the distance that bench was ready to travel in the face of opposition from the government, religious outfits of all hues, and the awareness that recognition of same-sex marriage would come with another set of legal challenges. There is no denying the fact that same-sex marriage issues are linked to religion-based personal law. The Special Marriage Act is a secular law and intended to facilitate inter-caste and inter-faith marriages. But Hindus, Jains, Buddhists, and Sikhs, who get married under this law, fall back on their personal law for inheritance and other benefits. This is a reminder of the vortex of complications that awaits the upending of the marriage of same-sex partners, as demanded by the petitioners.”
The bench further added “ The terrain of same-sex marriage is the easier one for the court to cross. The difficulty is, once you cross the terrain, there is no stopping. The court necessarily would have to go into other areas. If we adopt a course suggested by the petitioners, then we will be required to differentiate between the personal laws of four-five communities. If in the Special Marriage Act, we substitute ‘person’ for ‘man and woman’ and ‘spouse’ for ‘husband and wife’, that may be the simple act of reading up or reading down a statute. But can we stop at that and say we go thus far and no further? The canvas covered by the petitioners demanding marriage rights for same-sex couples falls in the domain of Parliament. That is why it would be better for us to examine whether same-sex marriage rights can be recognized. Getting into further details would make it complicated.
Giving an example of complications posed by the personal laws, the CJI asked “ What about two Hindu men or two Hindu women marrying? If one of them dies intestate, can the court say that we will not go into what will happen to the spouse living? Hindu law provides a procedure for devolving the deceased person’s property. There is a distinct line of succession when a woman or a man dies intestate. How does the court avoid getting into these things if we go into deciding the rights linked to marriage?”
A senior advocate for the petitioners argued that under constitutional rights, every citizen enjoyed the right to marry. “ How can the right be confined to only heterosexual couples? This makes the Special Marriage Act discriminatory towards same-sex couples. On the ground alone, the court can strike it down as unconstitutional. One can not have the right without a remedy.” The bench responded by saying, “ If we strike it down as unconstitutional, what benefit would the petitioners get? There are 35 statutes governing various rights consequential to marriage. The argument is that the SC needs to confine itself only to the Special Marriage Act. This means we will be creating a non-religious marriage framework for same-sex couples. Will the court then not falter by denying the same benefit to religious persons of the same sex, who do not want to forgo their religion?”
One of the Justice asked another question, “Are the petitioners entitled to speak for the entire LGBTQIA+ community? Are they truly representatives of the entire community? There may be diverse views, there may be unheard voices who want to preserve the tradition. And yet, the moment we secularise or constitutionalise same-sex marriage rights under the Special Marriage Act, we would be denying them their rights under the personal law”.
The arguments are going to continue. But one thing which the SC has realized now is that it will be very difficult for the court to recognize same-sex marriage under the purview of the Special Marriage Act unless it is linked to the personal laws covering inheritance, adoption, the rights of adopted kids, and many more other things. A few days back the same SC was arguing with the Solicitor General on these matters, and the CJI and other bench judges were of the opinion that the court should intervene in the matter of personal laws, for recognizing same-sex marriages. It was the solicitor General who pointed out to the SC that it is the Parliament that is the legislating body, that can pass and amend any laws including personal laws. Now the SC is saying that they can only review whether same-sex marriages can come under the Special Marriage Act. Whereas the fact is that when the Special Marriage Act came into existence more than five decades back, there was no talk of same-sex marriage in any corner of the world.
The final outcome of the case is yet to come.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
26th April 2023