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Same-Sex Marriage: Additional Rights Can't Be Given To Non-heterosexual Marriages, Says SG Tushar Mehta

Chief Justice of India (CJI) D Y Chandrachud, as part of a five-judge bench, is hearing petitions regarding legalising same-sex marriages in India.

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As the same-sex marriage hearing entered day six on Thursday, Solicitor General Tushar Mehta started his argument with the statement that the court cannot give additional rights to non-heterosexual marriages that heterosexual couples do not have under the Special Marriage Act.

He cited the provisions for divorce as an example.

Chief Justice of India (CJI) D Y Chandrachud, as part of a five-judge bench, is hearing petitions regarding legalising same-sex marriages in India.

Arguments on day six

According to the Special Marriage Act, a wife may ask for divorce on the ground that her husband has, since the solemnisation of the marriage, been guilty of rape, sodomy, or bestiality.

Mehta said, “This is a right specifically given to the wife. In the case of gay marriage, who would get this right? The petitioner's argument is that the court must allow both parties to have this right. But there is a problem there… can the court allow a right to one party in a gay marriage and not to party in a heterosexual marriage?”

SC asked Centre not to cite US verdict on abortion

The Supreme Court, hearing pleas seeking legal sanction for same-sex marriage, observed on Tuesday that it is a well-settled principle that "judges don't legislate" and asked the Centre not to cite the US top court verdict denying any constitutional right to abortion in support of its argument.

CJI Chnadrachud told Mehta earlier that he could not rely on the US Supreme Court’s 2022 Dobbs v Jackson case to argue judicial restraint as “in India, we have gone far beyond that.”

“Dobbs represents a view of the American SC that a woman has no control over her bodily integrity. This theory has been debunked long back in our country,” he added.

Mehta cited the case, in which it was held that the Constitution does not confer a right to abortion. In doing so, the apex court overruled both Roe v Wade (1973) and Planned Parenthood v Casey (1992), which had recognised a woman’s right to make reproductive choices.

Previous arguments

Advocate Karuna Nundy yesterday began submissions seeking recognition of queer marriage under secular laws.

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.”

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 the sexual orientation of a person and this may lead 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.

What did law minister Rijiju say?

As the Supreme Court hears pleas seeking legal sanction for same-sex marriages, Union Law Minister Kiren Rijiju on Wednesday said an important matter like the institution of marriage has to be decided by the people of the country and that courts are not the forum to settle such issues.   

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He, however, clarified that he does not want to make the matter a "government versus judiciary" issue. "It is not. Absolutely not," the minister asserted. 

Responding to a question at a media conclave, he said, "It is a matter which concerns every citizen of India. It is the question of people's will. The will of the people is reflected in Parliament or in the legislature or assemblies..."    

Apparently referring to the Constitution bench of the top court hearing the matter, Rijiju said, "If five wise men decide something which is correct according to them -- I cannot make any kind of adverse comments against them -- But if people do not want it, you cannot impose things on the people...,". 

(With PTI Inputs)

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