SC Hearing on Same-Sex Marriage – Day 2 Arguments

On Wednesday, the Supreme Court made a statement countering the argument that legalizing same-sex marriage would negatively impact the children of such couples. The court pointed out that lesbian and gay individuals are already allowed to adopt children as individuals. The statement was made by a Constitution Bench, which was led by Chief Justice of India DY Chandrachud and also included Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli. They discussed the effects on children who have parents of the same sexual identity.

In response to the Central government's claims that same-sex relationships were only a concept embraced by urban elites, the Court argued that there was no data to support this assertion. They suggested that this misconception might be due to the fact that urban people are more likely to openly discuss their sexuality.

The petitioners' Senior Advocate, Mukul Rohatgi, argued that homosexual couples should receive the same legal benefits as heterosexual couples. He also highlighted that same-sex couples have to turn to the courts for representation since they do not have any representation in Parliament. Additionally, he pointed out that these couples face stigma from the majority, which further reinforces the need for legal recognition of same-sex marriage.

While the Senior Advocate was presenting their case, the Court examined Section 2(b) of the Special Marriage Act, which covers the "degrees of prohibited relationships" for individuals marrying under the Act. The Chief Justice of India commented on how certain same-sex relationships are prohibited under the Act. Justice Kaul then noted that although sisters-daughters are listed as a prohibited relationship under the Act, many communities in India allow it. This demonstrates the diversity of our country.

Senior Advocate, Abhishek Manu Singhvi, appearing for the petitioners, argued that the essence of the case is about the marital relationship, which should not be restricted by gender or gender identity. He emphasized that the heart of the matter is the idea of love is manifested in marriage, regardless of the couple's identities. The flip side of the case is the discrimination faced by a particular community based on sex, sexual orientation, gender, or gender identity, which is also at the core of the issue.

Singhvi pointed out that the Special Marriage Act offers a non-religious method of getting married, which is applicable to all couples. He also argued that same-sex couples should receive protection from social welfare institutions, in order to ensure equal treatment under the law.

During the hearing, the Bench was confronted with a question regarding the minimum age requirement for marriage if same-sex marriage is legalized under the Special Marriage Act.

Section 4 of the Act lays down the conditions for the solemnization of marriages. Sub-section 3 specifies that the male must have attained the age of 21 years, and the female, 18 years.

Justice Kohli asked how Section 4 of the Act would apply if gender-neutral terms were used instead. When Singhvi suggested that both males and females could have a minimum age of 21, the CJI cautioned that this approach might not be correct.

The CJI recalled a previous plea by BJP leader Ashwini Kumar Upadhyay, where the minimum age of 18 years for females to marry was challenged. The plea was dismissed, and it was noted that if the Court declared the provision unconstitutional, there would be no minimum age for marriage, and even a four-year-old girl could get married. The hearing will resume today.