As the same-sex marriage hearing entered day five on Wednesday, Chief Justice of India (CJI) D Y Chandrachud observed that the Centre's remarks on elitism was “just prejudice and has no bearing on how the Court will decide the case.”
Today, the petitioners continued their arguments and Advocate Karuna Nundy began submissions seeking recognition of queer marriage under secular laws.
Previous aruguements
Arguing for a same-sex couple married in the US, in which one person was born in India, Senior Advocate Geeta Luthra on Tuesday brought up the Foreign Marriages Act of 1969.
She said, “Virtually every democratic, progressive country of the world has recognised same sex marriages. We cannot be behind. Even if it’s one person or one minority. We cannot deny them rights. This includes their rights of visa, inheritance, adoption, right to have children, insurance.”
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The petitioners also previously argued that if the right to marry a person of choice is guaranteed under Article 21 (Protection of Life and Personal Liberty) and that marriage offers a measure of societal protection.
The petitioners seeking legal sanction for same-sex marriage on Tuesday urged the Supreme Court to recognise their right to marry saying there can't be a situation where the court will say it will give nothing as it can't give everything.
Not granting legal sanction to same-sex marriage would amount to "clear discrimination" on the ground of sexual orientation of a person and this may led to "gay brain-drain" where such persons will be forced to go to other countries for enjoying the fruits of marriage and other consequential benefits, said senior advocate Saurabh Kirpal, himself a gay.
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Kirpal, appearing for the petitioners' side, told a five-judge constitution bench headed by Chief Justice D Y Chandrachud that seven per cent of India's GDP will be affected if the LGBTQIA++ (lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally) are denied this fundamental right.
"There can't be a situation where the court will say that as it can't give everything, so it will give nothing," he told the bench, also comprising justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
During the fourth day's hearing in the matter, Kirpal said non-recognition of same-sex marriage will lead to a situation where gays and lesbians will be unwillingly tied in an unworkable marriage.
He said the LGBTQIA+ community cannot be left at the "mercy" of Parliament, which "failed them for 75 long years".
One of the lawyers appearing for the petitioners' side said 12 out of the G20 countries, including the EU, have permitted same sex marriages and around 34 countries of the world have also done that so India should not be "lagging" behind.
The hearing in the matter remained inconclusive and would continue on Wednesday.
Kirpal's name for elevation as a judge of the Delhi High Court is still pending with the Centre despite the apex court Collegium reiterating his name for judgeship.
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(With PTI Inputs)
