Thread by @LiveLawIndia

[Marriage Equality Petitions in #SupremeCourt- Day 6]

A constitution bench of #SupremeCourt will continue hearing the batch of petitions seeking legal recognition for queer marriage in India.

Follow this thread for live updates.

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The bench greets Justice SK Kaul a good morning as he is sitting virtually for the constitution bench.

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Justice Kaul: Mr Solicitor, we had indicated the broad scope of what will be argued. That should restrict the arguments of everyone.

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CJI DY Chandrachud: The challenge to the notice provisions in SMA, if that challenge is as a standalone prayer, we can assign that to a two judge bench. Have a junior check if it is a standalone prayer. It applies to heterosexuals too.

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SG Mehta: I wish to show that it perhaps may be an option to not go into the personal laws while dealing with SMA.

CJI DY Chandrachud: That you can show. Just don't argue on the merits of that. Because we're not hearing the other side on it too.

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SG Mehta: The petitioners have prayed to rewrite and restructure the SMA to suit a particular class of people.

CJI DY Chandrachud: Yes, let's see the SMA.

SG Mehta: First let's see S2(a)- degrees of prohibited relationships.

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SG Mehta: The argument was to cumulate both- that would be necessarily rewriting. Second, would your lordships read an enactment in a fashion which will apply differently to one class- the heterosexual and differently to homosexual, same sex- that class.

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SG Mehta: The statute cannot be read to mean A for one class and B for another class.

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CJI DY Chandrachud: The degrees of these prohibited relationships come from where? Hindu law?

SG Mehta: Sagothra and Sapinda- that is now codified.

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SG Mehta: What is the fundamental argument of the petitioner- which I respect- That it is my right to choose the sexual orientation.

CJI DY Chandrachud: No, they say that sexual orientation is given to me.

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CJI DY Chandrachud: They say that I'm entitled to my autonomy by virtue of my sexual orientation. Sexual orientation is not a matter of choice but a matter of immutable features- that's the argument.

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SG Mehta: There are two different schools of thoughts. One says that sexual orientation is acquirable also. Another says it is inbuilt. Let's not go into that.

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SG Mehta: Freedom of sexual orientation is hailed to be a fundamental right. That is his privacy issue- that's Navtej.

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SG Mehta: Kindly visualise this- from the very beginning I am attracted to those persons who are mentioned in the degree of prohibited relationships. Incest is not uncommon but it is prohibited worldwide.

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SG Mehta: But I'm attracted to my sister. We are consenting adults entering into activities within privacy. And we claim our right of autonomy, right of choice...based on that, can someone not challenge that why this restriction?

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CJI DY Chandrachud: That is far fetched.

SG Mehta: We used to treat even this as far fetched.

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SG Mehta: Suppose polygamous marriage- someone may challenge bigamy.

CJI DY Chandrachud: That is again governed by personal law.

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Justice Bhat: But these are universal rules. As long as these were not codified, they were accepted. That was the law, the norm. If you're building up to this and saying there is a state interest in this relationship, one can understand.

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Justice Bhat: There are certain interests of the state which are legitimate.

SG Mehta: State has no business to regulate social personal relationships. It is only in exceptional cases...

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SG Mehta: The state can regulate relationships if the state feels that it is in legitimate interest to do so. Therefore, marriage was not a regulated relationship. But state in its legislative policy wisdom decided that we will regulate and we can regulate only when we recognise.

SG Mehta: When your lordships were hearing Navtej, all these arguments were made. The central government said we leave it to the wisdom of the court but added that this has nothing to do with future right of marriage, inheritance.

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CJI DY Chandrachud: The state can regulate relationships. A parent may say that they can control their child but state can say you have to send them to school.

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SG Mehta: See the definition of full blood and half blood...we can never reconcile this provision - it says that one man has given birth to a child with a biological woman. Marriage between lesbians- that can't be read because it wouldn't be full blood.

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SG Mehta: This full blood will have inevitable impact of succession.

CJI DY Chandrachud: Then you see Section 3g of Hindu Marriage Act.

SG Mehta: Take it from me, Hindu Marriage Act will apply.

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SG Mehta refers to provisions pertaining to conditions of solemnisation of marriage and highlights provisions concerning persons unfit of mind and "procreation".

SG Mehta: Procreation necessarily means union between man and woman.

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CJI DY Chandrachud: That may or may not be. Emphasis in that provision is not so much on procreation as it is on mental illness.

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CJI DY Chandrachud: In the case of a heterosexual couple, the fact that one of the spouses cannot procreate doesn't render that an invalid marriage. Suppose the girl has had a hysterectomy when she was a child - she can still have a marriage.

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SG Mehta (refers to more provisions concerning prohibited relationships) : The act is not gender neutral.

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SG Mehta: Not only will your lordships need to rewrite the act, your lordships will have to recast statutory forms also.

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SG Mehta: Personal law gets re-entry through Section 21.

[SG Mehta reads Section 19]

SG Mehta: 19 says that persons belonging to Hindu, Buddhists, Sikhs, and Jains will renounce- they will not be a part of Hindu family but Muslim, parsi, Christian personal law continue to apply

SG Mehta: Please see Section 21 where succession act is made applicable across religion but not other personal laws of Muslims, parsis etc.

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CJI DY Chandrachud: There is one more thing- 19 provides for severance only in respect of your family status.

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CJI DY Chandrachud: 19 still holds intact the applicability of all other aspects of personal laws.

SG Mehta: Yes, I'm obliged. Therefore, it may not be a choice to not touch other personal laws. It is interwoven.

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SG Mehta refers to the 59th Report of the Law Commission which provided that it was desirable to exclude from the scope of S 21A cases where both parties were Hindus.

"In such cases, the law of succession should continue to apply."

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CJI DY Chandrachud: Correct me if I'm wrong, I think it is compulsory but failure to register doesn't render the marriage void.

Justice Bhat: Under Hindu Marriage Act, it's not compulsory.

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SG Mehta: The other side said that let both have both grounds for divorce. Like 1A applies only to a wife so who will be a wife in a man-man marriage etc - they said both would have both the grounds.

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SG Mehta: Then there is a problem. The problem is- can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted?

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SG Mehta: Right or a non-LGBT wife will be taken away because husband can also claim alimony.

Justice Kohli: But that's happening in heterosexual marriages too. We've all come across that at different times in our jurisdictions where the husband also claims.

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SG Mehta: But here only the wife can get, husband is under an obligation to give her maintenance. Here, there cannot be a decision on who is the wife in same sex relationship.

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SG Mehta: But if your lordships were to read "person" in place of husband or wife, one person will have right to claim maintenance from another. Meaning, in case of heterosexual marriages - husband can claim from wife.

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CJI DY Chandrachud: Therefore, looking at the conspectus of these provisions perhaps we can conceptualize your arguments by saying - reinterpreting provisions of SMA will have three major problems...

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CJI DY Chandrachud: You're saying the problems are-
1. It will involve substantial rewriting of legislation.
2. It may also involve the court ignoring some provisions which have been introduced as a matter of public policy- such as additional grounds for women in divorce cases.

CJI DY Chandrachud: And third, you're saying that it would involve reinterpretation of personal laws because there are segments of SMA which specifically contain reference to personal laws.

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SG Mehta: It opens room for several complications which my lords cannot conceive right now.

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SG Mehta refers to provisions pertaining to succession: Please see how other provisions also become unworkable. Indian Succession act indisputably applies to all except Hindus.

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SG Mehta: For domicile, it cannot be decided who will be the woman. For passports etc this issue will arise. Succession act provides for widow, widower, husband, wife, father,mother etc.

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SG Mehta: Let's say marriage is permitted. They adopt and then someone dies. Father and mother is LGBTQ couple - who will be treated as father and who will be mother? This is a dilemma and cannot be foreseen by your lordships.

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SG Mehta: There is different eligibility to adopt a child. If it's a man, he cannot adopt a girl child less than 21 years of difference. If it is a female, she cannot adopt male that way. So it cannot be gender neutral.

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SG reads more provisions which he states cannot be gender neutral: Spinster and bachelor has its own meaning

Justice Bhat: This language needs to be updated.

SG Mehta: This is 1872.

Justice Kohli: Time to update ourselves.

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SG Mehta refers to Domestic Violence Act: Please see Section 2(a)-
"aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent"

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SG Mehta now takes the court through the Dowry Prohibition Act: They also mention "bride" and "bridegroom".

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SG Mehta: Kindly for an illustration now see the Indian Penal Code. "Man" and "Woman" are defined under Section 10.

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SG Mehta: The word 'man' denotes all the male human beings & 'woman' denotes all female human beings.

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SG Mehta reads Section 304B IPC- Where the death of a woman is caused by any burns or bodily injury...subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death".

Justice Bhat: Even Section 376 will not apply in the case of same sex couples who are males?

SG Mehta: Section 375 applies only to males.

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SG Mehta: See the definition of rape- only a man can be guilty of rape.

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Justice Bhat: If a gay man rapes another man...

SG Mehta: That would be 377.

CJI DY Chandrachud: If it's without consent then.

SG Mehta: Yes I stand corrected.

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SG Mehta: Illustrative list is 150 sections of various other statutes. Therefore my lords may not give meaning which creates complications rather than solving the problem.

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SG Mehta: Maybe if the parliament considers appropriate, the parliament may in its wisdom provide for a comprehensive legislature.

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SG Mehta: As I pointed out yesterday, wherever other legislative bodies have done it they have suitably amended other allied laws as well.

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SG Mehta: The reliance on Ghaidan (landmark UK judgment on queer rights) is misplaced, it is without giving the background and context.

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SG Mehta: Ghaidan was not dealing with an interpretation which is concerned with several statutes. Please now see the difference in power available to the court in UK and India.

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The bench rises for lunch.

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Counsel: Your lordships indicated in the morning that you may de-tag some matters.

CJI DY Chandrachud: Just that matter about notice provision. That is capable of being handled by any other bench. Issue applies equally to heterosexual & same sex couples.

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CJI DY Chandrachud: It's not a five judge issue. It's a simple issue.

Ramachandran: As far as our petitions are concerned, the right to marry, we contend, would be elusory unless the notice provisions go.

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CJI DY Chandrachud: That issue is not sui generis to same sex couples. According to you, the right to marry even for a heterosexual couple is elusory when they have to give notice. That is not connected with the issue whether same sex couples have a right to marry.

Sr Adv Anand Grover: It's a constitutional issue because runaway couples both heterosexual and homosexual..

CJI DY Chandrachud: It's an important social issue, not necessarily a constitutional issue for a constitution bench.

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Grover: Right to privacy is affected. They are constitutional issues. It is eminent that this bench decides...19(1)(a) and 21 we're raising.

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Justice Bhat: Yes Mr Grover but even 19(1)(a)- Shreya Singhal and many of these judgments were not 5 judge bench judgements.

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CJI DY Chandrachud: Let's complete the hearings first. Mr SG is on his legs. Mr SG, wrap up quickly...

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SG Mehta: Right to love or cohabit or choose a partner is there but there is no fundamental right to seek recognition of that relationship as marriage.

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CJI DY Chandrachud: Can we tighten up your submission by saying that when you say that there is no fundamental right to seek recognition of that relationship as marriage or in any other name- can we recast it as legal recognition?

SG: Yes, legal recognition.

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CJI DY Chandrachud: In other words, suppose a same sex couple says that we're inviting a group of 25 friends and we will have a marriage ceremony. In law, there is no prohibition. You also agreed to that. Somebody may have reception, ceremony

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CJI DY Chandrachud: There's no bar in our law to having any form of ceremony. The question is about legal recognition.

SG Mehta: Yes. In Gujarat, one lady married herself recently.

Justice Bhat: Profound

SG: Spritually very profound but i don't know...

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Justice Kohli: What you're saying is that there could be a right to cohabit and give it a name of relationship which is sanctified but that will have no obligations on state to recognise it statutorily.

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CJI DY Chandrachud: But let's go step by step. Once you recognise that there is a right to cohabit, then it is the obligation of the state that all social impact of cohabitation has legal recognition.

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